Drone Law Blog


EPIC v. FAA, Drone Advisory Committee RTCA, & more.

Brief Summary of the Lawsuit:

April 2018, the Electronic Privacy Information Center (EPIC) sued:

in the United States District Court for the District of Columbia with counts alleging:

  1. Violation of the FACA: Failure to Open Meetings to the Public
  2. Violation of the APA: Agency Action Unlawfully Withheld
  3. Violation of the APA: Unlawful Agency Action
  4. Violation of the FACA: Failure to Make Records Available for Public Inspection
  5. Violation of the APA: Agency Action Unlawfully Withheld
  6. Violation of the APA: Unlawful Agency Action
  7. Claim for Declaratory Relief Under 28 U.S.C. § 2201(a)

EPIC alleges, “Although the DAC has been regularly meeting and advising the FAA since September 2016, it has conducted much of its work in secret and released only a small number of committee records.” They are suing to obtain records not released and also to open the DAC’s sub-committees to public access.

EPIC has sued the FAA/DOT at least 3 other times over issues surrounding drones according to my drone lawsuit/litigation database. EPIC currently has another case pending  before the D.C. Circuit Court of Appeals which has consolidated with the 4th Taylor v. FAA case.

 

Actual Text of EPIC’s Complaint:

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

 

ELECTRONIC PRIVACY INFORMATION CENTER

v.
DRONE ADVISORY COMMITTEE;

FEDERAL AVIATION ADMINISTRATION; DANIEL K. ELWELL, in his official capacity as Acting Administrator of the Federal Aviation Administration and Designated Federal Officer of the Drone Advisory Committee and RTCA Advisory Committee;

RTCA ADVISORY COMMITTEE;

UNITED STATES DEPARTMENT OF TRANSPORTATION; DAVID W. FREEMAN, in his official capacity as Committee Management Officer of the Department of Transportation;

Civ. Action No. 18-833

 

COMPLAINT FOR INJUNCTIVE RELIEF
1. This is an action under the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. 2; the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551–706; and the Declaratory Judgment Act, 28 U.S.C. § 2201(a), for injunctive and other appropriate relief to compel the Drone Advisory Committee (“DAC” or “Committee”) to comply with its transparency obligations.

2. Plaintiff Electronic Privacy Information Center (“EPIC”) specifically challenges (a) Defendants’ failure to make advisory committee meetings “open to the public,” as required by 5 U.S.C. app. 2 § 10(a)(1); and (b) Defendants’ failure to make “available for public inspection and copying” the “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents” of the DAC, as required by 5 U.S.C. app. 2 § 10(b).

3. Access to these nonpublic meetings and records would reveal how, if at all, the Drone Advisory Committee has addressed the threat that the deployment of Unmanned Aerial Vehicles (“UAVs” or “aerial drones” or simply “drones”) would pose to the privacy rights of persons in the United States.

 

Jurisdiction and Venue
4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331, 5 U.S.C. § 702, and 5 U.S.C. § 704. This Court has personal jurisdiction over Defendants.

5. Venue is proper in this district under 5 U.S.C. § 703 and 28 U.S.C. § 1391. Parties

6. Plaintiff EPIC is a nonprofit organization, incorporated in Washington, D.C., established in 1994 to focus public attention on emerging privacy and civil liberties issues. Central to EPIC’s mission is oversight and analysis of government activities that impact individual privacy. EPIC is a membership organization. The Members of EPIC’s Advisory Board include distinguished experts in law, technology, and public policy.

7. EPIC is the leading organization in the United States addressing the privacy issues that arise from the deployment of drones in the National Airspace System (“NAS”). As early as 2005, EPIC warned the public and policymakers about the adverse impact that drone surveillance would have on individual privacy.1

8. EPIC filed a petition with the FAA in 2012—joined by over 100 organizations, experts, and members of the public—demanding that the agency issue privacy regulations to safeguard the interests of the American public.2 EPIC has also twice brought suit against the FAA to enforce the agency’s obligation to establish privacy protections against drone surveillance. EPIC first sued the FAA when the agency denied EPIC’s 2012 petition and failed to address privacy issues in its first drone rulemaking. EPIC v. FAA, 821 F.3d 39 (D.C. Cir. 2016). EPIC subsequently filed suit to challenge the FAA’s final rule on small drones, a case which is currently pending before the U.S. Court of Appeals for the D.C. Circuit. EPIC v. FAA, No. 16- 1297 (D.C. Cir. argued Jan. 25, 2018).

9. EPIC recently filed a Freedom of Information Act (“FOIA”) suit against the Department of Homeland Security to obtain the agency’s drone policies, reports, and procedures. EPIC v. DHS, No. 18-545 (D.D.C. filed Mar. 8, 2018). In 2016, EPIC obtained key documents through a FOIA request concerning the work of the FAA’s Drone Registration Task Force. And in 2015, an EPIC FOIA case identified significant privacy and maintenance problems with the Department of Defense JLENS program, in which the Department conducted domestic surveillance using blimp-mounted radar and video equipment. EPIC v. Dep’t of the Army, No.  14–776 (D.D.C. filed May 6, 2014). After a JLENS surveillance blimp broke free, downed multiple power lines, and crash-landed in Pennsylvania, the program was eventually cancelled.

10. EPIC maintains one of the most popular privacy websites in the world, https://epic.org, which provides EPIC’s members and the public with access to current information about emerging privacy and civil liberties issues. EPIC’s website includes extensive information about the privacy risks arising from drone surveillance. EPIC frequently posts documents obtained under the FOIA and other open government statutes in order to educate the public about the privacy implications of government programs and activities.

11. Defendant Drone Advisory Committee (“DAC”) is an advisory committee of the United States government within the meaning of 5 U.S.C. app. 2 § 3(2). Ex. 1 at 3.5 The DAC was established and is utilized by the Federal Aviation Administration (“FAA”) and the United States Department of Transportation (“DOT”). The DAC includes a Drone Advisory Subcommittee (“DACSC” or “Subcommittee”) and at least three task groups: Task Group 1, Task Group 2, and Task Group 3 (collectively, “DAC Task Groups” or “Task Groups”). The DAC, the DACSC, and the DAC Task Groups are all under and part of the RTCA Advisory Committee (“RTCA”).

12. Defendant RTCA Advisory Committee is an advisory committee of the United States government within the meaning of 5 U.S.C. app. 2 § 3(2). The RTCA is utilized—and was established as a federal advisory committee—by both the FAA and the DOT. The RTCA is also an umbrella organization comprising at least 26 constituent advisory committees, including the DAC.

13. Defendant Federal Aviation Administration is an agency within the meaning of 5 U.S.C. § 701, 5 U.S.C. § 551, and 5 U.S.C. app. 2 § 3(3). The FAA is also a sub-agency of the DOT.

14. Defendant Daniel K. Elwell is the Acting Administrator of the FAA. Mr. Elwell is also the Designated Federal Officer (“DFO”) of the DAC and the RTCA within the meaning of 5 U.S.C. app. 2 § 10(e)–(f).

15. Defendant United States Department of Transportation is an agency within the meaning of 5 U.S.C. § 701, 5 U.S.C. § 551, and 5 U.S.C. app. 2 § 3(3).

16. Defendant David W. Freeman is the Committee Management Officer (“CMO”) of the DOT within the meaning of 5 U.S.C. app. 2 § 8(b). Mr. Freeman is responsible for controlling and supervising the DAC, the RTCA, and the DFO of both committees (currently Mr. Elwell). Id.

Facts

The Growing Privacy Risks Posed by Drones

17. The integration of drones into the National Airspace System will adversely affect millions of Americans. Reports of drones threatening the safety of aircraft, civilians, first responders, and law enforcement officers—as well as reports of surveillance by drones on private property and “drone stalking”—are increasing.

18. Many operators enable their drones to surreptitiously observe, record, or otherwise collect information from individuals without their knowledge or consent, even through walls or from thousands of feet in the air.

19. Drones are routinely equipped with high definition cameras that greatly increase the capacity for domestic surveillance.9 Drones can also gather sensitive, personal information using infrared cameras, heat sensors, GPS, automated license plate readers, facial recognition devices, and other sensors.10 Drones are even “capable of locking-on to an individual and following them while shooting video and avoiding obstacles,” including in “a dense forest or urban environments like a warehouse.”

20. Drone use and drone sales are rapidly growing. U.S. drone sales more than doubled between 2016 and 2017,12 and commercial drones are representing an ever-larger share of the worldwide drone market.13 Meanwhile, President Trump has taken steps to effect a “quick and dramatic expansion of drone use” in the NAS.14 Unwelcome Visit, N.Y. Times (Jan. 27, 2016), https://www.nytimes.com/2016/01/28/style/ neighbors-drones-invade-privacy.html.

21. Despite these alarming trends, the FAA has refused to promulgate generally applicable regulations to address the privacy risks posed by drones—even ignoring a Congressional command to do so in the FAA Modernization and Reform Act of 2012.

22. The Drone Advisory Committee, which directly advises the FAA on drone deployment, has the obligation to present to the FAA proposals and recommendations to address widespread and obvious public concerns about the impending risks of drone surveillance in the United States.

23. Yet there is no evidence that the DAC has fulfilled its essential responsibility to assess these risks to the public interest. References to privacy are extremely sparse in the few public DAC records, while the vast majority of DAC records and subcommittee meetings remain closed to the public in violation of the FACA.

The Formation and Structure of the DAC

24. On May 4, 2016, then-FAA Administrator Michael Huerta stated that the FAA was “establishing” the DAC, which he described as “a broad-based advisory committee that will provide advice on key unmanned aircraft integration issues.” Ex 2.16

25. The DAC was in fact “established” by the FAA on or before August 31, 2016. Ex. 3.17 The DAC was “formed under the RTCA federal advisory committee.” Id.

26. The chairman and the original members of the DAC were appointed by the FAA on or before August 31, 2016. Id. The Committee held its first public meeting on September 16, 2016, in Washington, D.C. Ex. 4.18

27. As of March 2018, the DAC was comprised of thirty-two members. Ex. 14.19 Eighteen Committee members are affiliated with corporations or organizations engaged in the design, manufacture, operation, or management of drones. Id. Nine members are affiliated with traditional aircraft operators, airport authorities, or associations of aviation professionals. Id. Two members are university-affiliated researchers, and three members are public officials (only one of whom is elected). Id. No privacy, consumer safety, or other general public interest groups are represented on the DAC.

28. The DAC Terms of Reference—which the FAA “issued,” Ex. 10 at 420—charge the DAC with providing an “open venue” for Committee members to “identify and recommend a single, consensus-based set of resolutions for issues regarding the efficiency and safety of integrating UAS [unmanned aircraft systems] into the NAS and to develop recommendations to address those issues and challenges.” Ex. 1 at 2.

29. According to the FAA, DAC members are to “discuss key issues and challenges associated with integrating unmanned aircraft in the world’s busiest and most complicated airspace system.” Ex. 2. However, the Committee is to “conduct more detailed business through a subcommittee and various task groups that will help the FAA prioritize its activities, including the development of future regulations and policies.” Id.

30. The DAC Subcommittee was established at some point between the first full DAC meeting (September 16, 2016), Ex. 4, and the second full DAC meeting (January 31, 2017), Ex. 5.21 The date of the Subcommittee’s first meeting, as with nearly all DACSC proceedings, was not announced and is not publicly known.

31. The DACSC Terms of Reference—which the FAA “issued,” Ex. 10 at 4—state that the Subcommittee’s role is to “support” the DAC, to “present findings to DAC,” and to “[f]orward recommendations and other deliverables to DAC for consideration.” Ex. 6 at 1, 3.22 However, contrary to the DACSC Terms of Reference, FAA officials have repeatedly circumvented the full DAC and worked directly with the Subcommittee.

32. For example, FAA officials have “brief[ed]” and “educat[ed]” the DACSC, Ex. 10 at 8; provided “guidance and assistance to the DAC Subcommittee,” Ex. 11 at 2;23 and personally participated in multiple DAC meetings at which the Subcommittee delivered reports on its work. See, e.g., Ex. 5 at 2–3; Ex. 10 at 3–4, 8; Ex. 12 at 2, 7.24

33. Moreover, the DAC’s Designated Federal Officer—previously Acting FAA Deputy Administrator Victoria B. Wassmer, now Acting Administrator Elwell—is required by both the RTCA Charter and the FACA to be intimately involved in the proceedings of the DACSC. The “DFO or alternate” must “[c]all, attend, and adjourn all the committee/ subcommittee meetings”; “[a]pprove all committee/subcommittee agendas”; and “[c]hair meetings when directed to do so by the FAA Administrator.” Ex. 13 at 2–3;25 see also 5 U.S.C. app. 2 § 10(e)–(f).

34. The DAC also includes at least three “FAA-approved Task Groups,” each of which must “have a specific, limited charter” that is “approved by the FAA Administrator.” Ex. 1 at 2. According to the FAA, the agency’s “traditional way of providing tasking” to Task Groups is to “finalize and approve the tasking statement and forward it to the [Committee] to execute.” Ex. 5 at 10.

35. Task Group 1 was established at some point between the first full DAC meeting (September 16, 2016), Ex. 4, and the second full DAC meeting (January 31, 2017), Ex. 5. The FAA instructed Task Group 1 to “[d]evelop a set of consensus based recommendations” concerning “the roles and responsibilities of federal, state, and local governments in regulating and enforcing drone laws.” Ex. 7 at 7.26

36. Task Group 2 was also established at some point between the first full DAC meeting (September 16, 2016), Ex. 4, and the second full DAC meeting (January 31, 2017), Ex. 5. The FAA instructed Task Group 2 to “provide recommendations on UAS operations/missions beyond those currently permitted” and “define procedures for industry to gain access to the airspace.” Ex. 8 at 1.27

37. Task Group 3 was established sometime between the second full DAC meeting (January 31, 2017), Ex. 5, and the third full DAC meeting (May 3, 2017), Ex. 10. The FAA instructed Task Group 3 to “develop recommendations as to the UAS community’s preferred method(s) for 26 Tasking Statement from Victoria B. Wassmer, Acting Deputy Adm’r, FAA, to DAC Task Group 1 (Jan. 31, 2017).

38. The DACSC Terms of Reference nominally require the Task Groups to perform their work “at the direction of the DACSC,” Ex. 6 at 3, rather than at the direction of FAA officials. In October 2017, Mr. Elwell, then the FAA Deputy Administrator, explained to the Washington Post: “If we [the FAA] meddle, if we get in there, they’re not advising us.” Ex. 20.29 Nevertheless, FAA officials have personally directed, guided, participated in, and received the work and recommendations of the Task Groups.

39. For example, in early 2017, Acting Deputy Administrator Wassmer “issued” the detailed tasking statements for all three Task Groups. Ex. 10 at 4. The tasking statements included factfinding assignments for each Task Group, topics that each Task Group should advise on, and deadlines by which each Task Group should deliver its recommendations and reports. See Ex. 7; Ex. 8; Ex. 9. As Wassmer made clear to the DAC, “tasking statements from the FAA should guide the work of the DAC, DACSC, and TGs.” Ex. 10 at 4.

40. Wassmer and Acting Administrator Elwell also personally attended DAC meetings at which the Task Groups delivered substantive recommendations and reports. See, e.g., Ex. 10 at 2, 9–17; Ex. 11 at 1, 3–9; Ex. 12 at 2, 8–18.

41. And because the Task Groups constitute subcommittees of the DAC, Wassmer and Elwell were (or are) required to be intimately involved in the proceedings of the Task Groups in their capacity as Designated Federal Officer. Under the RTCA Charter, the “DFO or alternate” must “[c]all, attend, and adjourn all the committee/ subcommittee meetings”; “[a]pprove all committee/subcommittee agendas”; and “[c]hair meetings when directed to do so by the FAA Administrator.” Ex. 13 at 2–3; see also 5 U.S.C. app. 2 § 10(e)–(f).

The Transparency Obligations of the DAC

42. The DAC, according its Terms of Reference, must conduct its work in the “open, transparent venue of a federal advisory committee (FAC). As with all FACs, the Drone Advisory Committee (DAC) will be designed to: ensure transparency, include broad and balanced representation across the industry, encourage innovation and remain consistent with US anti-trust laws.” Ex. 1 at 1.

43. Under the FACA, the meetings of each advisory committee—defined as any “committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof” which is “established or utilized” by an agency—“shall be open to the public.” 5 U.S.C. app. 2 §§ 3(2), 10(a)(1).

44. The Charter of the RTCA—of which the DAC, the DACSC, and the DAC Task Groups are all part—confirms that “RTCA Advisory Committee and subcommittee meetings will be
open to the public, except as provided by section 10(d) of the FACA and applicable regulations. Meetings will be announced in the Federal Register at least 15 days before each meeting, except in emergencies.” Ex. 13 at 3.

45. The DAC Terms of Reference further underscore that “The DAC functions as a Federal advisory committee with meetings that are open to the public, unless otherwise noted as authorized by section 10(d) of the FACA and applicable regulations . . . .” Ex. 1 at 3.

46. Under the FACA, “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the offices of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist.” 5 U.S.C. app. 2 § 10(b).

47. The RTCA Charter confirms that “[s]ubject to the Freedom of Information Act, 5 U.S.C. § 552, records, reports, transcripts, minutes, or meeting summaries, and other materials presented to or prepared for the RTCA Advisory Committee are available for public inspection.” Ex. 13 at 4.

48. The DAC Terms of Reference state that “[i]n accordance with the Federal Advisory Committee Act, meeting summaries and related information will be available to the public via RTCA’s website. Documents undergoing final review can be obtained by contacting RTCA.” Ex. 1 at 6.

49. The RTCA Charter also states that the “records of the committee, formally and informally established subcommittees, or other work or task subgroup of the subcommittee, shall be handled in accordance with the General Records Schedule 6.2, or other approved agency records disposition schedule.” Id.

50. General Records Schedule 6.2 “covers Federal records created or received by Federal advisory committees and their subgroups pursuant to the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and records related to the management of these committees by their sponsoring agencies or departments.” Nat’l Archives & Records Admin., General Records Schedule 6.2: Federal Advisory Committee Records 130 (Sep. 2016), Ex. 15.

51. General Records Schedule 6.2 requires the “[p]ermanent” preservation of “records related to the establishment of the committee”; “records related to committee membership”; “records of committee meetings and hearings”; “records related to committee findings and recommendations”; “records created by committee members,” including “correspondence documenting discussions, decisions, or actions related to the work of the committee”; “records related to research collected or created by the committee”; “documentation of advisory committee subcommittees”; “records that document the activities of subcommittees that support their reports and recommendations to the chartered or parent committee.” Id. at 130–32.

52. The General Services Administration, which is “responsible for all matters relating to advisory committees,” and “prescribe[s] administrative guidelines and management controls applicable to advisory committees,” 5 U.S.C. app. 2 § 7, instructs that: “Whether subcommittees are open to the public or not, the agency must . . . [c]omply with recordkeeping requirements (i.e., minutes)” and “[a]llow public access to subcommittee records.” Federal Advisory Committee Act Training Course 192 (2017), Ex 16.

53. FACA regulations also dictate that a committee or agency “may not require members of the public or other interested parties to file requests for non-exempt advisory committee records under the request and review process established by section 552(a)(3) of FOIA.” 41 C.F.R. § 102-3.170.

The Activities of the DAC and DAC Subcomponents

54. On September 16, 2016, the DAC held its first full Committee meeting in Washington, D.C. Ex. 4. Acting Deputy Administrator Wassmer, then the Committee’s DFO, attended the meeting and delivered remarks. Id. at 1.

55. DAC Secretary Al Secen presented the results of a survey of DAC members at the September 2016 meeting. DAC members identified privacy as the second-highest public concern around drones, narrowly trailing safety and reliability:

56. Yet in the same survey, DAC members ranked privacy dead last among their regulatory and policy concerns:

57. During the September 2016 meeting, the DAC identified as an action item: “Establish a WG to describe the privacy concerns, and to identify the respective roles and responsibilities for dealing with privacy concerns across local, state, regional and federal entities.” However, there is no public record of the DAC ever forming a working group focused on privacy.

58. During the same meeting, the DAC also identified “[e]stablishing a standing DAC Subcommittee,” “[e]stablish[ing] a task group” as action items. Ex. 4 at 2.

59. Between the DAC’s September 2016 and January 2017 meetings, the DACSC, Task Group 1, and Task Group 2 were formed and began engaging in official Committee business. See Ex. 5 at 2–7.

60. Although members of the DACSC and the Task Groups met and conferred during this period, see id., Defendants failed to publicly notice or announce any such meetings.

61. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection, apart from limited information presented to the DAC at its January 2017 meeting.

62. On January 31, 2017, the DAC held its second full Committee meeting in Reno, Nevada. Ex. 5. Acting Deputy Administrator Wassmer, then the Committee’s DFO, attended the meeting and delivered remarks. Id. at 1.

63. The DACSC, Task Group 1, and Task Group 2 each delivered a progress report to the DAC at the January 2017 meeting. Id. at 2–7. Task Group 1 and Task Group 2 discussed their substantive recommendations to the FAA. Id. at 3–7. The DAC also “approved the DACSC to go through the process of creating TG3 [Task Group 3]” based on the tasking statement issued by the FAA. Id. at 10.

64. According to the publicly available records of the January 2017 meeting, the privacy implications of drones were referenced only once in passing.

65. Between the DAC’s January 2017 and May 2017 meetings, the DACSC, Task Group 1, and Task Group 2 continued engaging in official Committee business. See Ex. 10 at 8–14. Task Group 3 was also formed during this period and began engaging in official Committee business. See id. at 14–16.

66. Although members of the DACSC and the Task Groups met and conferred during this period, see Ex. 10 at 8–16, Defendants failed to publicly notice or announce any such meetings.

67. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection, apart from limited information presented to the DAC at its May 2017 meeting.

68. On May 3, 2017, the DAC held its third full Committee meeting in Herndon, Virginia. Ex. 10. Acting Deputy Administrator Wassmer, then the Committee’s DFO, attended the meeting and delivered remarks. Id. at 1.

69. The DACSC and each of the Task Groups delivered a progress report to the DAC at the May 2017 meeting. Id. at 8–16. Task Group 1 and Task Group 2 discussed their substantive recommendations to the FAA. Id. at 8–14.

70. According to the publicly available records of the May 2017 meeting, the privacy implications of drones were referenced only twice in passing.

71. Between the DAC’s May 2017 and July 2017 meetings, the DACSC and the Task Groups continued engaging in official Committee business. See Ex. 11 at 3–9.

72. Although members of the DACSC and the Task Groups met and conferred during this period, see id., Defendants failed to publicly notice or announce any such meetings.

73. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection, apart from limited information presented to the DAC at its July 2017 meeting.

74. On July 21, 2017, the DAC held its fourth full Committee meeting via digital conference. Ex. 11. Mr. Elwell, then the FAA Deputy Administrator, attended the meeting as the Committee’s newly appointed DFO. Id. at 2. Elwell also delivered remarks during the meeting. Id. at 2–3.

75. Task Group 1 and Task Group 3 both delivered a progress report and recommendations to the DAC at the July 2017 meeting. Id. at 3–9. Task Group 3 also presented an interim report intended for the FAA concerning funding mechanisms for the introduction of drones into the NAS. Id. at 3–7.

76. San Francisco Mayor Ed Lee, who served on the DAC until his death in December 2017, sent a representative to the July 2017 meeting to speak on his behalf. The representative told the DAC that Mayor Lee “remained concerned about privacy and ensuring broader input in the[DAC] discussion from partners such as law enforcement agencies and other local government representatives. The desire is to have an equal, one-to-one representation of local government to industry members.”

77. According to the publicly available records of the July 2017 meeting, Mayor Lee’s statement was the sole reference made by the DAC to the privacy implications of drones.

78. During the July 2017 meeting, the DAC approved the interim funding report presented by Task Group 3. The RTCA officially delivered the Task Group 3 report to then-Deputy Administrator Elwell on September 11, 2017. Ex. 17.30 The RTCA Advisory Committee does not appear to have collectively reviewed or approved the Task Group 3 report before transmitting it to the FAA.

79. Between the DAC’s July 2017 and November 2017 meetings, the DACSC and the Task Groups continued engaging in official Committee business. See Ex. 12 at 8–18.

80. Although members of the DACSC and the Task Groups met and conferred during this period, see id., Defendants failed to publicly notice or announce any meetings.

81. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection, apart from limited information presented to the DAC at its November 2017 meeting.

82. On October 23, 2017, the Washington Post published a report that Task Group 1—a group that includes “industry insiders with a financial stake in the outcome” of the Committee process—“has been holding confidential meetings to shape U.S. policy on drones, deliberating privately about who should regulate a burgeoning industry that will affect everything from package delivery to personal privacy.” Ex. 21.31

83. The Washington Post also reported that the Task Group 1 process had “been riven by suspicion and dysfunction” and that “[m]onths of tensions came to a head” when “an FAA contractor that manages the group told members they had to sign a far-reaching confidentiality agreement to keep participating. After some raised concerns, several groups were blocked from
30 Letter from Margaret Jenny, President, RTCA, to Daniel K. Elwell, Deputy Adm’r, FAA (Sep. 11, 2017).

84. On November 8, 2017, Mayor Ed Lee sent a letter to DAC Chairman Brian Krzanich warning that “Task Group 1’s process has been marred by a lack of transparency and poor management,” including “lack of agendas, last minute rescheduling of meetings, failure to have minutes of any proceedings, conflicting advice and guidance by RTCA and Requirements to sign documents that public employees cannot sign.” Ex. 19 at 1. Mayor Lee added: “Additionally, there is a stark imbalance of perspectives and viewpoints favoring industry interests at the expense of local and state governments and members of the public. Because the process was flawed, the recommendations produced by that process are also flawed.” Id.

85. On the same day—November 8, 2017—the DAC held its fifth full Committee meeting at the Amazon Meeting Center in Seattle, Washington. Ex. 12. Mr. Elwell, then the FAA Deputy Administrator, attended the meeting and delivered remarks. Id. at 2–6.

86. The DACSC and each of the Task Groups delivered a progress report to the DAC at the November 2017 meeting. Id. at 7–18. Each Task Group discussed its substantive recommendations to the FAA. Id. at 8–14.

87. Task Group 2 also presented a final report intended for the FAA concerning drone access to airspace. Id. at 12–16. The DAC approved the report. Id. at 16.

88. According to the publicly available records of the November 2017 meeting, the privacy implications of drones were referenced only four times: once in a question posed to Task Group 2 and three times in a presentation about local government views on drone deployment.

89. On information and belief, the DACSC and the DAC Task Groups have continued to meet, confer, and engage in official Committee business since the November 2017 meeting.

90. Defendants have failed to publicly notice or announce any meetings of the DACSC or the DAC Task Groups from this period.

91. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection.

92. On March 9, 2018, the DAC held its sixth full Committee meeting in McLean, Virginia. Sixth Drone Advisory Committee (DAC) Meeting, 83 Fed. Reg. 7,284, 7,284 (Feb. 20, 2018).

93. To date, Defendants have failed to release minutes from the March 2018 meeting. However, Acting Administrator Elwell was scheduled to attend and speak at the meeting as the Committee’s DFO. Id.

94. The DAC’s next full Committee meeting is scheduled for July 17, 2018. Drone Advisory Committee (DAC), RTCA (2018).32

EPIC’s Attempts to Obtain DAC Records

95. On March 20, 2018, EPIC sent a records request via email to Acting FAA Administrator Elwell, DOT Committee Management Officer David W. Freeman, DAC Secretary Al Secen, and the RTCA’s general information email address. Ex. 18.

96. In its request, EPIC stated that it wished to access “all ‘records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by’ the DAC or any DAC subcomponent. 5 U.S.C. App. 2 § 10(b).” Id.

97. EPIC asked the agency and Committee recipients to “direct EPIC to the URL or location where the full collection of DAC and DAC subcomponent records is available for public inspection and copying.” Id.

98. EPIC also advised the FAA, DAC, and RTCA of its records disclosure obligations under the FACA. Id.

99. As of April 11, 2018, EPIC has received no response to its request.

100. On April 6, 2018, EPIC Counsel John Davisson called and left a voicemail message for DAC Secretary Al Secen. Mr. Davisson reiterated EPIC’s desire to obtain access to DAC records and left a return number for Mr. Secen to call.

101. As of April 11, 2018, EPIC has received no response to this message.

Count I
Violation of the FACA: Failure to Open Meetings to the Public

102. Plaintiff asserts and incorporates by reference paragraphs 1–101.

103. Defendants have failed to open meetings of the DACSC and DAC Task Groups to the public.

104. Defendants’ failure to open DACSC and DAC Task Group meetings to the public is a violation of 5 U.S.C. app. 2 § 10(a)(1).

105. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ violation of 5 U.S.C. app. 2 § 10(a)(1). By failing to open DACSC and DAC Task Group meetings, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.

106. Plaintiff has exhausted all applicable administrative remedies.

Count II
Violation of the APA: Agency Action Unlawfully Withheld

107. Plaintiff asserts and incorporates by reference paragraphs 1–101.

108. Defendants have failed to open meetings of the DACSC and DAC Task Groups to the public, as required by 5 U.S.C. app. 2 § 10(a)(1).

109. Defendants’ failure to make these meetings open to the public constitutes agency action unlawfully withheld or unreasonably delayed in violation of 5 U.S.C. § 706(1).

110. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ violation of 5 U.S.C. § 706(1). By failing to open DACSC and DAC Task Group meetings, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.

111. Plaintiff has exhausted all applicable administrative remedies.

Count III
Violation of the APA: Unlawful Agency Action

112. Plaintiff asserts and incorporates by reference paragraphs 1–101.

113. Defendants have held numerous nonpublic meetings of the DACSC and DAC Task Groups in violation of 5 U.S.C. app. 2 § 10(a)(1).

114. By holding nonpublic meetings, Defendants have engaged in conduct that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under 5 U.S.C. § 706(2)(a) and short of statutory right under 5 U.S.C. § 706(2)(c).

115. Defendants’ conduct constitutes final agency action under 5 U.S.C. § 704.

 

116. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ actions. By holding nonpublic DACSC and DAC Task Group meetings, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.

117. Plaintiff has exhausted all applicable administrative remedies.

Count IV
Violation of the FACA: Failure to Make Records Available for Public Inspection

118. Plaintiff asserts and incorporates by reference paragraphs 1–101.

119. Defendants have failed to make “available for public inspection and copying” numerous “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups. 5 U.S.C. app. 2 § 10(b).

120. Plaintiff sought to inspect and copy these records, but Defendants did not make them available to Plaintiff.

121. Defendants’ failure to make these records available for inspection and copying is a violation of 5 U.S.C. app. 2 § 10(b).

122. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ violation of 5 U.S.C. app. 2 § 10(b). By failing to make numerous DAC records available for public inspection, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.

123. Plaintiff has exhausted all applicable administrative remedies.

Count V
Violation of the APA: Agency Action Unlawfully Withheld

124. Plaintiff asserts and incorporates by reference paragraphs 1–101.

125. Defendants have failed to make “available for public inspection and copying” numerous “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups. 5 U.S.C. app. 2 § 10(b).

126. Plaintiff sought to inspect and copy these records, but Defendants did not make them available to Plaintiff.

127. Defendants’ failure to make these records available to Plaintiff constitutes agency action unlawfully withheld or unreasonably delayed in violation of 5 U.S.C. § 706(1).

128. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ violation of 5 U.S.C. § 706(1). By failing to make numerous DAC records available for public inspection, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.

129. Plaintiff has exhausted all applicable administrative remedies.

Count VI
Violation of the APA: Unlawful Agency Action

130. Plaintiff asserts and incorporates by reference paragraphs 1–101.

131. Since September of 2016, Defendants have held multiple meetings of the DAC, the DACSC, and the DAC Task Groups; engaged in substantive deliberations within and between the DAC, the DACSC, and the DAC Task Groups; issued official recommendations, reports, findings, and conclusions on behalf of the DAC, the DACSC, and the DAC Task Groups; assigned “action items” on behalf of the DAC to the FAA, the RTCA Advisory Committee, the DACSC, and the DAC Task Groups; and undertaken other official DAC business.

132. Defendants have engaged in this conduct without making “available for public inspection and copying” numerous “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups. 5 U.S.C. app. 2 § 10(b).

133. Plaintiff sought to inspect and copy these records, but Defendants did not make them available to Plaintiff.

134. By undertaking official Committee business without publicly disclosing records covered by U.S.C. app. 2 § 10(b), Defendants have engaged in conduct that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under 5 U.S.C. § 706(2)(a) and short of statutory right under 5 U.S.C. § 706(2)(c).

135. Defendants’ conduct constitutes final agency action under 5 U.S.C. § 704.

136. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ actions. By undertaking official Committee business without publicly disclosing numerous records covered by U.S.C. app. 2 § 10(b), Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.

137. Plaintiff has exhausted all applicable administrative remedies.

Count VII
Claim for Declaratory Relief Under 28 U.S.C. § 2201(a)

138. Plaintiff asserts and incorporates by reference paragraphs 1–101.

139. Plaintiff is entitled under 28 U.S.C. § 2201(a) to a declaration of the rights and other legal relations of the parties with respect to the claims set forth in Counts I–VI.

Requested Relief

WHEREFORE, Plaintiff requests that this Court:

A. Order Defendants to preserve all records prepared for or by the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups;

B. Order Defendants to produce an index of all records prepared for or by the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups;

C. Order Defendants to make available for inspection and copying all records prepared for or by the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups;

D. Order Defendants to notice and open to the public all future meetings of the DACSC, DAC Task Groups, and any other DAC subcomponent hereafter established;

E. Enjoin the DAC, DAC subcomponents, DAC officers, and DAC members from holding meetings; conducting deliberations; issuing recommendations, reports, findings, or conclusions; and engaging in other official DAC business until Defendants are in full compliance with 5 U.S.C. app. 2 § 10(a)(1) and § 10(b);

F. Hold unlawful and set aside any actions, findings, and conclusions of the DAC, the DACSC, and the DAC Task Groups which predate Defendants’ full compliance 5 U.S.C. app. 2 § 10(a)(1) and § 10(b);

G. Award EPIC costs and reasonable attorney’s fees incurred in this action; and

H. Grant such other relief as the Court may deem just and proper.

Respectfully Submitted,
MARC ROTENBERG, D.C. Bar #422825
EPIC President and Executive Director
/s/ Alan Butler
ALAN BUTLER, D.C. Bar #1012128
EPIC Senior Counsel
JOHN DAVISSON, D.C. Bar #153191433
EPIC Counsel
ELECTRONIC PRIVACY
INFORMATION CENTER
1718 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20009
(202) 483-1140 (telephone)
(202) 483-1248 (facsimile)
Attorneys for Plaintiff EPIC
Dated: April 11, 2018


Drone Insurance Guide from Attorney/Flight Instructor (2018)

What happens if you crash your drone into a person, yourself, or something expensive? No, seriously. Think about it. You most likely right now are wondering about how to obtain your drone license, finding jobs, running your drone operation, etc.

But seriously.

Are you protected? Do you have enough money to cover the costs of an accident?

“The prudent sees danger and hides himself, but the simple go on and suffer for it.” Proverbs 27:12

This article is designed to help you understand, drone insurance, drone insurance terminology, bad substitutes for proper drone liability insurance, and the different angles liability can come from so you can make wise decisions to protect your business and your family. This article is helpful for:

  • Commercial drone operators
  • Businesses hiring drone operators for services
  • Recreational flyers.

Table of Contents of this Drone Insurance Guide:


I had an hour with Terry Miller, an insurance broker at Unmanned Risk, discussing a lot of the issues in this article and some stuff that is NOT in the article.

Why Drone Insurance? 

Let’s go back in time to when kings used to protect themselves with castles.  They had moats, archers, knights, big walls, catapults, a draw bridge, etc.  All of these things were barriers to prevent an invading army from capturing the king.  Likewise, you need to treat yourself, and your family, as the royal family and surround yourself with different types of protections.

Insurance is a way of protecting yourself, your family, and your business from a catastrophic accident. In addition to protection, drone insurance:

  • Shows that you are a serious professional and potentially allows you to access higher end clients who require drone insurance.
  • Is the loving thing to have to make sure your customers, or other people, are protected and made whole if they are injured.
  • Allows you to continue focusing on doing your business while your insurance company handles the claim.
  • Lets you sleep at night or continue focusing on running your business.

Yes, I can hear you now saying, “But Jonathan, I would never fly my drone in an unsafe manner. Why should I buy drone insurance?” You also might say, “I would never let reckless people fly around me or for me.”

I’m not saying you would fly recklessly or allow others but there are situations outside of your knowledge and/or control which would lead to an accident. The Academy of Model Aeronautics insurance report from 2012 says, “The most common cause of injury is ‘lost control of aircraft’; usually without a confirmed cause (vague allegations of frequency interference are common).”

There are things outside of your knowledge and control that can happen which put you at risk of liability.

What is Drone Insurance?

Insurance can simply be boiled down to you trading your risk of liability to the insurance company in exchange for money you pay to them.

You can have liability risk from all sorts of things ranging from aircraft accidents, negligent repairs, negligent instruction, negligent hiring, etc.

Everyone has in their mind the idea of the drone flying into some car or another person, but I don’t want you to think of things so narrowly.

You need to think broadly when it comes to liability.

You should think in terms of the different actions and relationships you might have relative to other individuals.

 

Below is a table of SOME of the legal liabilities. It is not exhaustive but covers the major points. Each individual or business will have different liabilities which will trigger the need for special insurance products tailored to them. If you are working with a good drone insurance broker or drone attorney, they should be able to help you identify issues. Or perhaps you are large company that needs a drone attorney? Cough cough. Hint hint. Wink wink. Moving on…

Please keep in mind the threshold for getting into a lawsuit is low. Regardless of the likelihood of judgement against you, you will be paying for an attorney to defend you and not be focused on your business.

 

Drone Insurance Terminology:

Before we can talk further about some of the issues, we need to have an understanding of the terms. Some of these are from Terry Miller’s Transport Risk’s Drone Insurance 101 slides:

  • Premium – This is the amount of money that the person or business must pay for the insurance policy.
  • Deductible – In the event of a claim, this is the amount the person must pay before the insurance company will pay. This is to make sure the named insured has some “skin in the game.”
  • Non-Owned Aircraft Coverage – Protects you from legal obligations that result from the operation of a drone you do not own.
  • Payload Coverage – This covers the payload you own on the drone. For example, let’s say you are a drone cinematography company that can carry different types of cameras. You could insure the Red Dragon differently than the Red Epic.
  • Non-owned Payload Coverage -This covers the payload of the drone you do NOT own. For example, you are a cinematography company that flies an aircraft that can carry different cameras. The production company wants you to use a special type of camera and lens that you do not own. You rent the equipment from a camera rental studio and get non-owned payload coverage on the rented camera and lens.
  • Additional Insured – A person or person other than the original named insured, who is  protected under the terms of a policy.
  • UAS Liability Insurance – Protects insureds from claims by other parties (“third parties”) for bodily injury or death and property damage. The claim has to result from an occurrence related to the operation of the UAS.
  • Hull Insurance – Coverage for physical damage done to the drone. It is not liability coverage and is therefore triggered by a covered event, regardless of the reason for the damage or loss.
  • Subrogation – A doctrine that gives an insurance company the right to attempt to recoup some or all of the money they paid on behalf of insureds. They do this by proving that another party was legally responsible for the loss and the party has the financial ability to reimburse the insurance company.

 

Problematic Substitutes for Drone Insurance

 

1. Home Owner Insurance Is Not Always Drone Insurance

Some of you might have home owner’s insurance. Here is the problem with using it as drone insurance, most home owners insurance policies have exclusions which state that they specifically do not cover aircraft related liability. Claimsjournal.com repeated this in an article, “Most homeowners’ policies exclude liability for injuries or damages arising out of the ownership, maintenance, operation, use, loading, or unloading of “aircraft.” See, e.g., Id.; Aridas v. Royal Ins. Co. of Am., 462 F. Supp. 2d 76, 77 (D. Me. 2006); Hanover Ins. Co. v. Showalter, 561 N.E.2d 1230, 1231 (Ill. App. Ct. 1990)Tucker v. Allstate Tex. Lloyds Ins. Co., 180 S.W.3d 880, 884 (Tex. App. 2005).

Some insurance policies might cover recreational drone flying if the definition of “aircraft” in the policy allows for it. The Claimsjournal.com article went on to say, ” Our research reveals that at least some homeowners’ policies define ‘aircraft’ as ‘any device used or designed for flight, except model or hobby aircraft not used or designed to carry people or cargo.’ See, e.g., Tucker, 180 S.W.3d at 884. To the extent a UAS operator’s homeowners’ policy includes this definition, or some similar variation, harm caused by an insured’s UAS is likely covered because a UAS will probably be deemed “a model or hobby aircraft not used or designed to carry people or cargo.”

It is also important to recognize that most homeowners’ policies exclude coverage for business activities.”

Read your policy to see if you are covered. If your home owner or renter’s insurance does NOT cover your drone flying, you should look at getting drone insurance.

 

2. AMA Member Drone Insurance Is Not Really Commercial Drone Insurance

Academy of Model Aeronautics’ insurance policy will provide SOME recreational protection, see the fine details of the policy, but the policy says, “The policy does NOT cover business pursuits; that is any activity that generates income for a member beyond reimbursement of expenses, except this business pursuit exclusion does not apply to individual members providing modeling instructions for pay to AMA members.”

Furthermore, “AMA insurance is ‘excess’ to any other applicable coverage, such as homeowner’s” which means your home owners insurances has to pay first and be exhausted before the AMA insurance will kick in.  What does that mean? You will have higher home owner’s insurance premiums in the future. Even after you put that Phantom 4 in the closet.

 

3. Relying on Someone Else’s Drone Insurance Policy to Cover You is Problematic.

 

Yes, you can get listed on another person’s insurance policy as additionally insured. This can provide you SOME protection, but this can be problematic.

Who might want to purchase non-owned drone insurance policies?

  • Companies hiring drone service providers
  • Independent flight instructors or educational institutions providing instruction to people on their own drones

Yes, I can hear you now, “Wait? Say wuuuuttt?!! Jonathan, you are saying I still need to purchase insurance even though I am protected by the other person’s policy?”

Yes, and here is why.

The other person could:

  • Have lied on their application and their claims will be denied.
  • Be operating outside the terms and conditions of the insurance coverage.
  • Be flying another drone NOT listed on their policy and they didn’t bother to tell you they crashed the first one.
  • Have cancelled his policy or stopped paying for it. There have been reports of people and/or companies in the drone industry just purchasing an annual policy, sending the potential client a certificate of insurance, and then cancelling the policy after the job is awarded. In this case, the company hiring the drone service provider can separately purchase from the insurance company a notice of cancellation.

Moreover, their insurance policy does NOT protect you from:

What is even more crazy is that the insurance company for the drone company might even come after YOU for your negligence. This is under what is called subrogation. Basically, the insurance company stands in the shoes of the insured.  If you goofed over the person you hired, and that insurance company had to pay out, the insurance company might turn around and come after you for your negligence to recover the money they paid out.  This is why sometimes the hiring company purchases from the insurance company of the drone service provider a waiver of subrogation which prevents the insurance company from pursuing claims against the additionally insured hiring company. Keep in mind that is only for the insurance company. The drone service provider might still come after you.

Drone Insurance Considerations

 

1.Insurance Broker or Go Direct to Insurance Company?

  • Drone Liability Insurance Broker
    • A broker is interested in selling you the best product for your needs.
    • May or may NOT cost you more. The agent makes his money from selling you an insurance policy which typically means more expensive policies. However, he can also shop around to find you the best “bang for the buck” which might come out lower.
    • The agent will be there to help answer your questions and identify future needs. You might need a special 1 time high limit insurance policy for a job that broker can help you with.
    • Help to identify the correct hull valuation which is important if a claim is made. For example, if you overestimate your aircraft’s worth and the damage does not numerically get high enough to the overestimate to be declared a total loss, you end up getting your drone repaired when it should have just been replaced. Terry Miller made some good points in this article,  “Consider the dangers of over-insuring your UAS. Over-insuring your UAS comes with unwanted consequences:
      • Paying higher premiums for coverage under the policy
      • Likely that physical damage premium will be fully-earned
      • Deductible costs are out of pocke
      • Repair of a UAS that should be totaled
      • Ownership of a UAS with damage history and thus lower resale value
      • Questionable safety of the repaired UAS
  • Direct to Drone Insurance Company
    • Insurance companies are interested in selling you the products their company sells. In other words, if they are a “hammer” selling company, all of your problems look like “nails.”
    • Insurance company can sometimes charge lower prices because there is no broker commissions to pay. However, this means you might waste a lot of time trying to read through all the material to find out what is best for you when an independent broker could have answered your questions quickly.

 

2.Annual vs. Hourly Drone Insurance

Annual insurance is fixed while hourly insurance is….well…hourly.  This means that if you fly too much, hourly will be MORE expensive than annual insurance. Here is how to figure out if you might need annual instead of hourly drone insurance.

  1. Figure out how many hours you plan on flying for a month. Yes, this might be hard to figure out at the very beginning. You could do hourly insurance for 1-2 months and then use the number of hours you flew in those 1-2 months as a basis to estimate the upcoming months. You could also call over to companies in the area and ask them.
  2. Determine how many months realistically you will be able to fly. Consider how weather will affect your flying and/or customers. For example, you can do business year-round in Florida or Southern California but only some of the year in New England. If you go to my drone sightings page, you’ll see a graph of drone sightings activity by month and also by city. This can give you rough idea of the months for your area.
  3. Find out the cost of an annual premium.
  4. Divide that by the number of months you think you will be flying.
  5. This will arrive at the cost per month for the annual insurance policy. You can then see if it will be more costly to fly using hourly insurance or if it will be cheaper.

Also keep in mind that it is not annual OR hourly insurance. You might purchase both. Why?  Let’s say you have a Phantom 4 you fly a ton, but you have an Inspire 2 which you don’t fly frequently. You might purchase annual for the Phantom 4 and then get hourly for the Inspire 2 you rarely fly. You might be able to add the additional Inspire 2 to your annual policy for not that much more money but that would be dependent upon you knowing or expecting it. If you can’t expect flying it, you might just do hourly as a backup in a moments notice.

If you are a startup and are slowly testing the waters, you might want to keep your operating costs low and use hourly insurance for the first 1-2 months.

3. Myths regarding hourly insurance.

 4. Do you have enough?

For example, if you cause an accident which takes down electrical power to an area, that could be costly because (1) you have to pay to repair the line, (2) the electric company lost revenue, (3) there might be some lawsuits for destroyed food caused by lack of refrigeration due to power failure, (4) car accident because the traffic light went out, etc.

 

How to Choose a Drone Insurance Broker

Helpful Questions:

  • How long they have been an aviation insurance broker? Is that important?
  • Do they have any special training? (College degree in insurance or aviation, etc.)
  • Have they worked for an aviation insurance company? In other words, have they worked on the “other side?”
  • Do they sell aviation insurance products for manned aircraft also?
  • Does anyone else in the drone industry use them?
  • Do they have support staff to help you in case the broker is out?
  • Do they have access to other types of insurance that an aviation insurance broker might not have access to?

Once you find one, call only that broker. Don’t call around to get competitive quotes. Keep reading to find out why.

 

Frequently Asked Questions:

Is drone insurance legally required?

In the United States, according to the Federal Aviation Regulations, you do not need drone insurance; however, state and local laws might require it or other types of insurance associated with your operations (e.g. commercial operations might need worker’s compensation insurance). See an aviation attorney in your state.

Can I get drone insurance for just one job?

Yes, drone insurance can be purchased hourly, per job, per day, or on an annual basis.

Is it a good idea to call around to different insurance brokers to get competitive bids?

No, here is why.  There are only a small number of UAS insurance companies that do business in the US. As a rule, an insurance company will work only with one broker at a time based on the order they come in.  In other words, you won’t have two competitive bids because the insurance company will be dealing with only ONE broker, the first one to contact them, representing you.

 

How many different insurance products are out there for those in the drone industry?

There are all sorts of other different types of insurance products that some in drone industry might need:

  • Worker’s comp
  • UAS repair and servicing
  • Manufacturing
  • Flight instructing (negligent instruction)
  • Agriculture spraying operations
  • Premises liability, and much more.

 

Great Drone Crash Videos to Make You Start Seeing the Drone Insurance Issues

Sometimes Reckless People Might Be Flying Over the Event You Are Hosting

 

Sometimes You Realize You are Not a Top Gun Pilot or a Cinematographer.

 


FAA Reauthorization Act of 2018 & Drones

Brief Summary of the FAA Reauthorization Act of 2018:

Representative Shuster introduced on 4/13/2018 the FAA Reauthorization Act of 2018 which plans to fund the FAA out until 2023. This is a very large bill that addresses many things aviation related. For purposes of this article, only drone-related issues will be covered.

Some of the sections of the FAA Reauthorization Act of 2018 are almost copy-pastes of Sections 331-336 of the FAA Modernization and Reform Act of 2012.  Some of the provisions below are from the 21st Century AIRR Act from 2017 that failed to become law.

Like this article? This article is part of my Drone Legislation Database.

Notable Points of the FAA Reauthorization Act of 2018

  • Local government regulations?  Tells the Department of Transportation’s Inspector General’s Office to conduct a study on “the regulation and oversight of the low-altitude operations of small unmanned aircraft and small unmanned aircraft systems” and “appropriate roles and responsibilities of Federal, State, local, and Tribal governments in regulating and overseeing the operations of small unmanned aircraft in airspace 400 feet above ground level and below.”
  • User fees for drones? Tells the Comptroller General of the United States to do a study on appropriate fee mechanisms to recover the costs of “the regulation and safety oversight of unmanned aircraft and unmanned aircraft systems” and “the provision of air navigation services to unmanned aircraft and unmanned aircraft systems.” Does this mean having unmanned aircraft flyers pay for UTM?
  • Unmanned Aircraft Traffic Management Systems
    • Tells FAA to “initiate a rule making to establish procedures for issuing air navigation facility certificates” for unmanned aircraft traffic management systems.
    • Provides for unmanned aircraft traffic management system or communication, navigation, or surveillance system or service to get an approval prior to rule making. (Think of this like the Section 333 exemptions back in the day prior to Part 107). This is only for croplands, non-congested areas, and where UAS pose a very low risk.
  • Model Aircraft
    • For the Section 336 protected aircraft, adds that an aircraft cannot be considered a protected model aircraft if it flies over or within 500ft laterally of a facility that operates amusement rides for the general public, unless authorized by the owner of the amusement facility.
    • Allows for flight instruction or educational flights, even if compensated, to be done in the protected model aircraft category.
    • Defines a Community Based Organization to be:
      • “(1) is described in section 501(c)(3) of the Internal Revenue Code of 1986;
        “(2) is exempt from tax under section 501(a) of the Internal Revenue Code of 1986;
        “(3) the mission of which is demonstrably the furtherance of model aviation;
        “(4) provides a comprehensive set of safety guidelines for all aspects of model aviation addressing the assembly and operation of model aircraft and that emphasize safe aeromodeling operations within the national airspace system and the protection and safety of individuals and property on the ground;
        “(5) provides programming and support for any local charter organizations, affiliates, or clubs; and
        “(6) provides assistance and support in the development and operation of locally designated model aircraft flying sites.
    • Tells the FAA to make a process to recognize community based organizations that meet the criteria above.
  • Commercial Drones
    • Tells the FAA to update two regulations in Part 107. Specifically section 107.205 and section 107.25 to allow those flying a drone from a moving vehicle or under a beyond the line of sight waiver to be able to carry other person’s property for compensation or hire.
    • Tells the FAA to publish on the FAA’s website a “sample of the safety justifications, offered by applicants for small unmanned aircraft system waivers and airspace authorizations, that have been approved by the Administration for each regulation waived or class of airspace authorized.”
    • Tells the FAA to establish a small UAS air carrier certificate for transporting property for compensation or hire.
    • Tells the FAA to create a SUAS air carrier certificate process that is “streamlined, simple, performance-based, and risk-based.”
    • Tells the Department of Transportation to develop a classification system for SUAS air carriers to establish economic authority by only requiring registration with the DOT and have a valid SUAS air carrier certificate issued by the FAA.
  • Test Sites. Extends the tests sites for 6 more years after the passage of the FAA Reauthorization Act of 2018.
  • Indian Tribes. Allows Indian tribes to obtain public aircraft status using unmanned aircraft.
  • Registration of Aircraft.
    • Tells the FAA to “develop and track metrics to assess compliance with and effectiveness of the registration of small unmanned aircraft systems” with respect to:
      • “(1) the levels of compliance with the interim final rule and any subsequent final rule;”
      • “(2) the number of enforcement actions taken by the Administration for violations of or noncompliance with the interim final rule and any subsequent final rule, together with a description of the actions; and”  [Note: Once again, already reported on. John Taylor from the Taylor v. FAA case filed a Freedom of Information Act request from the FAA and they came back with a surprising FOIA response. The FOIA response was published on SUAS News.]
  • Special Research and Development Category.  Remember Section 336 for model aircraft? Well, this bill wants to create a similar protected class for aircraft being flown strictly for research and development that is even less restrictive than the proposed model aircraft elements below. It does not have a weight limit.  That being said, it prohibits the FAA from creating, a rule or regulation regarding this special category.
  • Calls for a bunch of research.  Use of spectrum for manned and unmanned aircraft, mid-air collision between manned and unmanned aircraft, beyond line of sight, probabilistic assessment of risks, metrics for exemptions.

Pros:

  • This bill has the potential to speed up the implementation of package delivery in the United States by allowing package delivery companies to fly under the existing easier set of regulations which currently do not allow for beyond line of sight waivers to be given for package delivery. It also creates an small unmanned aircraft air carrier certificate.
  • It calls for the DOT Inspector General’s Office to conduct a study on the appropriate roles and responsibilities of state and local in regulating drones below 400ft. Notice it is conduct a study. This is good because if the state or local law makers are considering creating a law, you can tell them to hold off until this study is completed. At least this buys you time and at best prevents some extra state and local drone laws.

Cons:

  • Extremely weak on changing the FAA’s current extremely relaxed enforcement philosophy. The total number of prosecutions since 2015 against unmanned aircraft flyers is at least 50. We have millions of flights with tons of stupid and illegal activity all over the internet. And it’s just 50? The bill tells the FAA to track some stuff, the DOT IG’s office to track the FAA’s progress and give a report on this. What is that going to do? We know there is already mass non-compliance all over the place.
  • There are no penalties for the FAA not doing something.
  • The SUAS air carrier certificate is for the SMALL UAS which are under 55 pounds. If you want to do some heavy package delivery, this isn’t an option for you.
  • Does not decriminalizing the counter UAS technologies/methodologies.

Questions Left Unanswered:

  • What happens if the FAA does not do what it was told to do? There is a whole lot of “the FAA must do this and that” going on here but what happens if they do not meet their deadlines? There needs to be some penalties in here to get the FAA moving; otherwise, this act is just letters on a page.
  • How will new Community Based Organizations come up?  The criteria defining a CBO says, “provides programming and support for any local charter organizations, affiliates, or clubs” and “provides assistance and support in the development and operation of locally designated model aircraft flying sites.”  Will the FAA have a long term policy of not requiring a person to be a member of a CBO to fall into Part 101? For example, let’s say some people want to create a CBO just for FPV racing.  Setting aside the whole FPV goggle “see and avoid” interpretive rule from 2014 issue, prior to the FPV group becoming a CBO, won’t everyone have to be a remote pilot operating under Part 107 until the CBO gets recognized? Will AMA or DUG allow you to fly under their rules while you are attempting to start your own CBO?
  • Double standards? Regarding model aircraft, why is critical infrastructure or prisons NOT mentioned but amusement parks are listed?  Why can’t tribal governments fly manned aircraft as public aircraft but can for unmanned aircraft?
  • SUAS air carrier certificate process that is streamlined, simple, performance-based, and risk-based? Simple? How in the world can this be done simply? Let me tell you what. The FAA is going to tell companies to go and get an exemption for portions of the regulations and then apply for a 135 certificate. There is nothing simple about this. The better thing to do is try and avoid air carrier classification and do package delivery under Part 107 with the waivers but you are still stuck with all the headaches there. Trust me. I’m working on waivers and they can be very time consuming. The recent DOT Inspector General’s testimony put waiver passage rates at around 10%. Thankfully, my waiver passage rates are in the 90’s.
  • Can someone please clean up the language?
    • ‘‘(g) EFFECTIVE PERIODS.—An exemption or certificate of waiver or authorization issued under this section, or an amendment of such exemption or certificate, shall cease to be valid on the effective date of a final rule on small unmanned aircraft systems issued under section 45502(b)(1).” Section 45502 is really the “updated” version of Section 332 of the FMRA of 2012 and was finally fulfilled by the FAA in the creation of Part 107 in August 29th, 2016.
    • In Section 334, it says, ” It is the sense of Congress that …..the unauthorized operation of unmanned aircraft near airports presents a serious hazard to aviation safety; ……91.126 through 91.131 of title 14, Code of Federal Regulations, prohibit unauthorized operation of an aircraft in controlled airspace near an airport ……Federal aviation regulations, including section 91.13 of title 14, Code of Federal Regulations, prohibit the operation of an aircraft in a careless or reckless manner so as to endanger the life or property of another.” Why are they citing Part 91 when unmanned aircraft operate under Part 107? Yes, I know Section 333 exemption operations are under Part 91 but this is like some weird hold over from the pre-107 days.

 

 

Cosponsors of the FAA Reauthorization Act of 2018:

7 Democrats and 7 Republicans.

  • Rep. DeFazio, Peter A. [D-OR-4]
  • Rep. Smith, Lamar [R-TX-21]
  • Rep. LoBiondo, Frank A. [R-NJ-2]
  • Rep. Larsen, Rick [D-WA-2]
  • Rep. Barletta, Lou [R-PA-11]
  • Rep. Titus, Dina [D-NV-1]
  • Rep. Graves, Sam [R-MO-6]
  • Rep. Norton, Eleanor Holmes [D-DC-At Large]
  • Rep. Hunter, Duncan D. [R-CA-50]
  • Rep. Garamendi, John [D-CA-3]
  • Rep. Denham, Jeff [R-CA-10]
  • Rep. Capuano, Michael E. [D-MA-7]
  • Rep. Graves, Garret [R-LA-6]
  • Rep. Napolitano, Grace F. [D-CA-32]

 

Actual Text of Unmanned Aircraft Portions of the FAA Reauthorization Act of 2018:

SEC. 331. DEFINITIONS.

Except as otherwise provided, the definitions contained in section 45501 of title 49, United States Code (as added by this Act), shall apply to this subtitle.

SEC. 332. CODIFICATION OF EXISTING LAW; ADDITIONAL PROVISIONS.

(a) In General.—Subtitle VII of title 49, United States Code, is amended by inserting after chapter 453 the following:

“CHAPTER 455—UNMANNED AIRCRAFT SYSTEMS


“Sec.

“45501. Definitions.

“45502. Integration of civil unmanned aircraft systems into national airspace system.

“45503. Risk-based permitting of unmanned aircraft systems.

“45504. Public unmanned aircraft systems.

“45505. Special rules for certain unmanned aircraft systems.

“45506. Certification of new air navigation facilities for unmanned aircraft and other aircraft.

“45507. Special rules for certain UTM and low-altitude CNS.

“45508. Operation of small unmanned aircraft.

“45509. Special rules for model aircraft.

“45510. Carriage of property for compensation or hire.

“45511. Micro UAS operations.

 

§ 45501. Definitions

“In this chapter, the following definitions apply:

“(1) AERIAL DATA COLLECTION.—The term ‘aerial data collection’ means the gathering of data by a device aboard an unmanned aircraft during flight, including imagery, sensing, and measurement by such device.

“(2) ARCTIC.—The term ‘Arctic’ means the United States zone of the Chukchi Sea, Beaufort Sea, and Bering Sea north of the Aleutian chain.

“(3) CERTIFICATE OF WAIVER; CERTIFICATE OF AUTHORIZATION.—The terms ‘certificate of waiver’ and ‘certificate of authorization’ mean a Federal Aviation Administration grant of approval for a specific flight operation.

“(4) CNS.—The term ‘CNS’ means a communication, navigation, or surveillance system or service.

“(5) MODEL AIRCRAFT.—the term ‘model aircraft’ means an unmanned aircraft that is—

“(A) capable of sustained flight in the atmosphere;

“(B) flown within visual line of sight of the person operating the aircraft; and

“(C) flown for hobby or recreational purposes.

“(6) PERMANENT AREAS.—The term ‘permanent areas’ means areas on land or water that provide for launch, recovery, and operation of small unmanned aircraft.

“(7) PUBLIC UNMANNED AIRCRAFT SYSTEM.—The term ‘public unmanned aircraft system’ means an unmanned aircraft system that meets the qualifications and conditions required for operation of a public aircraft (as defined in section 40102(a)).

“(8) SENSE-AND-AVOID CAPABILITY.—The term ‘sense-and-avoid capability’ means the capability of an unmanned aircraft to remain a safe distance from and to avoid collisions with other airborne aircraft.

“(9) SMALL UNMANNED AIRCRAFT.—The term ‘small unmanned aircraft’ means an unmanned aircraft weighing less than 55 pounds, including everything that is on board or otherwise attached to the aircraft.

“(10) UNMANNED AIRCRAFT.—The term ‘unmanned aircraft’ means an aircraft that is operated without the possibility of direct human intervention from within or on the aircraft.

“(11) UNMANNED AIRCRAFT SYSTEM.—The term ‘unmanned aircraft system’ means an unmanned aircraft and associated elements (including communication links and the components that control the unmanned aircraft) that are required for the pilot in command to operate safely and efficiently in the national airspace system.

“(12) UTM.—The term ‘UTM’ means an unmanned aircraft traffic management system or service.

 

§ 45502. Integration of civil unmanned aircraft systems into national airspace system

“(a) Required Planning For Integration.—

“(1) COMPREHENSIVE PLAN.—Not later than November 10, 2012, the Secretary of Transportation, in consultation with representatives of the aviation industry, Federal agencies that employ unmanned aircraft systems technology in the national airspace system, and the unmanned aircraft systems industry, shall develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system.

“(2) CONTENTS OF PLAN.—The plan required under paragraph (1) shall contain, at a minimum, recommendations or projections on—

“(A) the rulemaking to be conducted under subsection (b), with specific recommendations on how the rulemaking will—

“(i) define the acceptable standards for operation and certification of civil unmanned aircraft systems;

“(ii) ensure that any civil unmanned aircraft system includes a sense-and-avoid capability; and

“(iii) establish standards and requirements for the operator and pilot of a civil unmanned aircraft system, including standards and requirements for registration and licensing;

“(B) the best methods to enhance the technologies and subsystems necessary to achieve the safe and routine operation of civil unmanned aircraft systems in the national airspace system;

“(C) a phased-in approach to the integration of civil unmanned aircraft systems into the national airspace system;

“(D) a timeline for the phased-in approach described under subparagraph (C);

“(E) creation of a safe airspace designation for cooperative manned and unmanned flight operations in the national airspace system;

“(F) establishment of a process to develop certification, flight standards, and air traffic requirements for civil unmanned aircraft systems at test ranges where such systems are subject to testing;

“(G) the best methods to ensure the safe operation of civil unmanned aircraft systems and public unmanned aircraft systems simultaneously in the national airspace system; and

“(H) incorporation of the plan into the annual NextGen Implementation Plan document (or any successor document) of the Federal Aviation Administration.

“(3) DEADLINE.—The plan required under paragraph (1) shall provide for the safe integration of civil unmanned aircraft systems into the national airspace system as soon as practicable, but not later than September 30, 2015.

“(4) REPORT TO CONGRESS.—Not later than February 14, 2013, the Secretary shall submit to Congress a copy of the plan required under paragraph (1).

“(5) ROADMAP.—Not later than February 14, 2013, the Secretary shall approve and make available in print and on the Administration’s internet website a 5-year roadmap for the introduction of civil unmanned aircraft systems into the national airspace system, as coordinated by the Unmanned Aircraft Program Office of the Administration. The Secretary shall update, in coordination with the Administrator of the National Aeronautics and Space Administration (NASA) and relevant stakeholders, including those in industry and academia, the roadmap annually. The roadmap shall include, at a minimum—

“(A) cost estimates, planned schedules, and performance benchmarks, including specific tasks, milestones, and timelines, for unmanned aircraft systems integration into the national airspace system, including an identification of—

“(i) the role of the unmanned aircraft systems test ranges established under subsection (c) and the Unmanned Aircraft Systems Center of Excellence;

“(ii) performance objectives for unmanned aircraft systems that operate in the national airspace system; and

“(iii) research and development priorities for tools that could assist air traffic controllers as unmanned aircraft systems are integrated into the national airspace system, as appropriate;

“(B) a description of how the Administration plans to use research and development, including research and development conducted through NASA’s Unmanned Aircraft Systems Traffic Management initiatives, to accommodate, integrate, and provide for the evolution of unmanned aircraft systems in the national airspace system;

“(C) an assessment of critical performance abilities necessary to integrate unmanned aircraft systems into the national airspace system, and how these performance abilities can be demonstrated; and

“(D) an update on the advancement of technologies needed to integrate unmanned aircraft systems into the national airspace system, including decisionmaking by adaptive systems, such as sense-and-avoid capabilities and cyber physical systems security.

“(b) Rulemaking.—Not later than 18 months after the date on which the plan required under subsection (a)(1) is submitted to Congress under subsection (a)(4), the Secretary shall publish in the Federal Register—

“(1) a final rule on small unmanned aircraft systems that will allow for civil operation of such systems in the national airspace system, to the extent the systems do not meet the requirements for expedited operational authorization under section 45508;

“(2) a notice of proposed rulemaking to implement the recommendations of the plan required under subsection (a)(1), with the final rule to be published not later than 16 months after the date of publication of the notice; and

“(3) an update to the Administration’s most recent policy statement on unmanned aircraft systems, contained in Docket No. FAA–2006–25714.

“(c) Expanding Use Of Unmanned Aircraft Systems In Arctic.—

“(1) IN GENERAL.—Not later than August 12, 2012, the Secretary shall develop a plan and initiate a process to work with relevant Federal agencies and national and international communities to designate permanent areas in the Arctic where small unmanned aircraft may operate 24 hours per day for research and commercial purposes. The plan for operations in these permanent areas shall include the development of processes to facilitate the safe operation of unmanned aircraft beyond line of sight. Such areas shall enable over-water flights from the surface to at least 2,000 feet in altitude, with ingress and egress routes from selected coastal launch sites.

“(2) AGREEMENTS.—To implement the plan under paragraph (1), the Secretary may enter into an agreement with relevant national and international communities.

“(3) AIRCRAFT APPROVAL.—Not later than 1 year after the entry into force of an agreement necessary to effectuate the purposes of this subsection, the Secretary shall work with relevant national and international communities to establish and implement a process, or may apply an applicable process already established, for approving the use of unmanned aircraft in the designated permanent areas in the Arctic without regard to whether an unmanned aircraft is used as a public aircraft, a civil aircraft, or a model aircraft.

 

§ 45503. Risk-based permitting of unmanned aircraft systems

“(a) In General.—Not later than 120 days after the date of enactment of this section, the Administrator of the Federal Aviation Administration shall establish procedures for issuing permits under this section with respect to certain unmanned aircraft systems and operations thereof.

“(b) Permitting Standards.—Upon the submission of an application in accordance with subsection (d), the Administrator shall issue a permit with respect to the proposed operation of an unmanned aircraft system if the Administrator determines that the unmanned aircraft system and the proposed operation achieve a level of safety that is equivalent to—

“(1) other unmanned aircraft systems and operations permitted under regulation, exemption, or other authority granted by the Administrator; or

“(2) any other aircraft operation approved by the Administrator with similar risk characteristics or profiles.

“(c) Safety Criteria For Consideration.—In determining whether a proposed operation meets the standards described in subsection (b), the Administrator shall consider the following safety criteria:

“(1) The kinetic energy of the unmanned aircraft system.

“(2) The location of the proposed operation, including the proximity to—

“(A) structures;

“(B) congested areas;

“(C) special-use airspace; and

“(D) persons on the ground.

“(3) The nature of the operation, including any proposed risk mitigation.

“(4) Any known hazard of the proposed operation and the severity and likelihood of such hazard.

“(5) Any known failure modes of the unmanned aircraft system, failure mode effects and criticality, and any mitigating features or capabilities.

“(6) The operational history of relevant technologies, if available.

“(7) Any history of civil penalties or certificate actions by the Administrator against the applicant seeking the permit.

“(8) Any other safety criteria the Administrator considers appropriate.

“(d) Application.—An application under this section shall include evidence that the unmanned aircraft system and the proposed operation thereof meet the standards described in subsection (b) based on the criteria described in subsection (c).

“(e) Scope Of Permit.—A permit issued under this section shall—

“(1) be valid for 5 years;

“(2) constitute approval of both the airworthiness of the unmanned aircraft system and the proposed operation of such system;

“(3) be renewable for additional 5-year periods; and

“(4) contain any terms necessary to ensure aviation safety.

“(f) Notice.—Not later than 120 days after the Administrator receives a complete application under subsection (d), the Administrator shall provide the applicant written notice of a decision to approve or disapprove of the application or to request a modification of the application that is necessary for approval of the application.

“(g) Permitting Process.—The Administrator shall issue a permit under this section without regard to subsections (b) through (d) of section 553 of title 5 and chapter 35 of title 44 if the Administrator determines that the operation permitted will not occur near a congested area.

“(h) Exemption From Certain Requirements.—To the extent consistent with aviation safety, the Administrator may exempt applicants under this section from paragraphs (1) through (3) of section 44711(a).

“(i) Withdrawal.—The Administrator may, at any time, modify or withdraw a permit issued under this section.

“(j) Applicability.—This section shall not apply to small unmanned aircraft systems and operations authorized by the final rule on small unmanned aircraft systems issued pursuant to section 45502(b)(1).

“(k) Expedited Review.—The Administrator shall review and act upon applications under this section on an expedited basis for unmanned aircraft systems and operations thereof to be used primarily in, or primarily in direct support of, emergency preparedness, emergency response, or disaster recovery efforts, including efforts in connection with natural disasters and severe weather events.

 

§ 45504. Public unmanned aircraft systems

“(a) Guidance.—Not later than November 10, 2012, the Secretary of Transportation shall issue guidance regarding the operation of public unmanned aircraft systems to—

“(1) expedite the issuance of a certificate of authorization process;

“(2) provide for a collaborative process with public agencies to allow for an incremental expansion of access to the national airspace system as technology matures and the necessary safety analysis and data become available, and until standards are completed and technology issues are resolved;

“(3) facilitate the capability of public agencies to develop and use test ranges, subject to operating restrictions required by the Federal Aviation Administration, to test and operate unmanned aircraft systems; and

“(4) provide guidance on a public entity’s responsibility when operating an unmanned aircraft without a civil airworthiness certificate issued by the Administration.

“(b) Standards For Operation And Certification.—Not later than December 31, 2015, the Administrator shall develop and implement operational and certification requirements for the operation of public unmanned aircraft systems in the national airspace system.

“(c) Agreements With Government Agencies.—

“(1) IN GENERAL.—Not later than May 14, 2012, the Secretary shall enter into agreements with appropriate government agencies to simplify the process for issuing certificates of waiver or authorization with respect to applications seeking authorization to operate public unmanned aircraft systems in the national airspace system.

“(2) CONTENTS.—The agreements shall—

“(A) with respect to an application described in paragraph (1)—

“(i) provide for an expedited review of the application;

“(ii) require a decision by the Administrator on approval or disapproval within 60 business days of the date of submission of the application; and

“(iii) allow for an expedited appeal if the application is disapproved;

“(B) allow for a one-time approval of similar operations carried out during a fixed period of time; and

“(C) allow a government public safety agency to operate unmanned aircraft weighing 4.4 pounds or less, if operated—

“(i) within the line of sight of the operator;

“(ii) less than 400 feet above the ground;

“(iii) during daylight conditions;

“(iv) within Class G airspace; and

“(v) outside of 5 statute miles from any airport, heliport, seaplane base, spaceport, or other location with aviation activities.

 

§ 45505. Special rules for certain unmanned aircraft systems

“(a) In General.—Notwithstanding any other requirement of this subtitle, and not later than August 12, 2012, the Secretary of Transportation shall determine if certain unmanned aircraft systems may operate safely in the national airspace system before completion of the plan and rulemaking required by section 45502 or the guidance required under section 45504.

“(b) Assessment Of Unmanned Aircraft Systems.—In making the determination under subsection (a), the Secretary shall determine, at a minimum—

“(1) which types of unmanned aircraft systems, if any, as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace system or the public or pose a threat to national security; and

“(2) whether a certificate of waiver, certificate of authorization, or airworthiness certification under section 44704 is required for the operation of unmanned aircraft systems identified under paragraph (1).

“(c) Requirements For Safe Operation.—If the Secretary determines under this section that certain unmanned aircraft systems may operate safely in the national airspace system, the Secretary shall establish requirements for the safe operation of such aircraft systems in the national airspace system.

 

§ 45506. Certification of new air navigation facilities for unmanned aircraft and other aircraft

“(a) In General.—Not later than 18 months after the date of enactment of this section, and notwithstanding section 2208 of the FAA Extension, Safety, and Security Act of 2016 (49 U.S.C. 40101 note), the Administrator of the Federal Aviation Administration shall initiate a rulemaking to establish procedures for issuing air navigation facility certificates pursuant to section 44702 to operators of—

“(1) UTM for unmanned aircraft operations that occur primarily or exclusively in airspace 400 feet above ground level and below; and

“(2) low-altitude CNS for aircraft operations that occur primarily or exclusively in airspace 400 feet above ground level and below.

“(b) Minimum Requirements.—In issuing a final rule pursuant to subsection (a), the Administrator, at a minimum, shall provide for the following:

“(1) CERTIFICATION STANDARDS.—The Administrator shall issue an air navigation facility certificate under the final rule if the Administrator determines that a UTM or low-altitude CNS facilitates or improves the safety of unmanned aircraft or other aircraft operations that occur primarily or exclusively in airspace 400 feet above ground level and below, including operations conducted under a waiver issued pursuant to subpart D of part 107 of title 14, Code of Federal Regulations.

“(2) CRITERIA FOR CONSIDERATION.—In determining whether a UTM or low-altitude CNS meets the standard described in paragraph (1), the Administrator shall, as appropriate, consider—

“(A) protection of persons and property on the ground;

“(B) remote identification of aircraft;

“(C) collision avoidance with respect to obstacles and aircraft;

“(D) deconfliction of aircraft trajectories;

“(E) safe and reliable interoperability or noninterference with air traffic control and other systems operated in the national airspace system;

“(F) detection of noncooperative aircraft;

“(G) geographic and local factors;

“(H) aircraft equipage; and

“(I) qualifications, if any, necessary to operate the UTM or low-altitude CNS.

“(3) APPLICATION.—An application for an air navigation facility certificate under the final rule shall include evidence that the UTM or low-altitude CNS meets the standard described in paragraph (1) based on the criteria described in paragraph (2).

“(4) SCOPE OF CERTIFICATE.—The Administrator shall ensure that an air navigation facility certificate issued under the final rule—

“(A) constitutes approval of the UTM or low-altitude CNS for the duration of the term of the certificate;

“(B) constitutes authorization to operate the UTM or low-altitude CNS for the duration of the term of the certificate; and

“(C) contains such limitations and conditions as may be necessary to ensure aviation safety.

“(5) NOTICE.—Not later than 120 days after the Administrator receives a complete application under the final rule, the Administrator shall provide the applicant with a written approval, disapproval, or request to modify the application.

“(6) LOW RISK AREAS.—Under the final rule, the Administrator shall establish expedited procedures for approval of UTM or low-altitude CNS operated in—

“(A) airspace away from congested areas; or

“(B) other airspace above areas in which operations of unmanned aircraft pose very low risk.

“(7) EXEMPTION FROM CERTAIN REQUIREMENTS.—To the extent consistent with aviation safety, the Administrator may exempt applicants under the final rule from requirements under sections 44702, 44703, and 44711.

“(8) CERTIFICATE MODIFICATIONS AND REVOCATIONS.—A certificate issued under the final rule may, at any time, be modified or revoked by the Administrator.

“(c) Consultation.—In carrying out this section, the Administrator shall consult with other Federal agencies, as appropriate.

 

§ 45507. Special rules for certain UTM and low-altitude CNS

“(a) In General.—Notwithstanding any other requirement of this chapter, and not later than 120 days after the date of enactment of this section, the Secretary of Transportation shall determine if certain UTM and low-altitude CNS may operate safely in the national airspace system before completion of the rulemaking required by section 45506.

“(b) Assessment Of UTM And Low-Altitude CNS.—In making the determination under subsection (a), the Secretary shall determine, at a minimum, which types of UTM and low-altitude CNS, if any, as a result of their operational capabilities, reliability, intended use, and areas of operation, and the characteristics of the aircraft involved, do not create a hazard to users of the national airspace system or the public.

“(c) Requirements For Safe Operation.—If the Secretary determines that certain UTM and low-altitude CNS may operate safely in the national airspace system, the Secretary shall establish requirements for their safe operation in the national airspace system.

“(d) Expedited Procedures.—The Secretary shall provide expedited procedures for reviewing and approving UTM or low-altitude CNS operated to monitor or control aircraft operated primarily or exclusively in airspace above—

“(1) croplands;

“(2) areas other than congested areas; and

“(3) other areas in which the operation of unmanned aircraft poses very low risk.

“(e) Consultation.—In carrying out this section, the Administrator shall consult with other Federal agencies, as appropriate.

 

§ 45508. Operation of small unmanned aircraft

“(a) Exemption And Certificate Of Waiver Or Authorization For Certain Operations.—Not later than 270 days after the date of enactment of this section, the Administrator of the Federal Aviation Administration shall establish a procedure for granting an exemption and issuing a certificate of waiver or authorization for the operation of a small unmanned aircraft system in United States airspace for the purposes described in section 45501(1).

“(b) Operation Of Exemption And Certificate Of Waiver Or Authorization.—

“(1) EXEMPTION.—An exemption granted under this section shall—

“(A) exempt the operator of a small unmanned aircraft from the provisions of title 14, Code of Federal Regulations, that are exempted in Exemption No. 11687, issued on May 26, 2015, Regulatory Docket Number FAA–2015–0117, or in a subsequent exemption; and

“(B) contain conditions and limitations described in paragraphs 3 through 31 of such Exemption No. 11687, or conditions and limitations of a subsequent exemption.

“(2) CERTIFICATE OF WAIVER OR AUTHORIZATION.—A certificate of waiver or authorization issued under this section shall allow the operation of small unmanned aircraft according to—

“(A) the standard provisions and air traffic control special provisions of the certificate of waiver or authorization FAA Form 7711–1 (7–74); or

“(B) the standard and special provisions of a subsequent certificate of waiver or authorization.

“(c) Notice To Administrator.—Before operating a small unmanned aircraft pursuant to a certificate of waiver or authorization granted under this section, the operator shall provide written notice to the Administrator, in a form and manner specified by the Administrator, that contains such information and assurances as the Administrator determines necessary in the interest of aviation safety and the efficiency of the national airspace system, including a certification that the operator has read, understands, and will comply with all terms, conditions, and limitations of the certificate of waiver or authorization.

“(d) Waiver Of Airworthiness Certificate.—Notwithstanding section 44711(a)(1), the holder of a certificate of waiver or authorization granted under this section may operate a small unmanned aircraft under the terms, conditions, and limitations of such certificate without an airworthiness certificate.

“(e) Procedure.—The granting of an exemption or the issuance of a certificate of waiver or authorization, or any other action authorized by this section, shall be made without regard to—

“(1) section 553 of title 5; or

“(2) chapter 35 of title 44.

“(f) Statutory Construction.—Nothing in this section may be construed to—

“(1) affect the issuance of a rule by or any other activity of the Secretary of Transportation or the Administrator under any other provision of law; or

“(2) invalidate an exemption or certificate of waiver or authorization issued by the Administrator before the date of enactment of this section.

“(g) Effective Periods.—An exemption or certificate of waiver or authorization issued under this section, or an amendment of such exemption or certificate, shall cease to be valid on the effective date of a final rule on small unmanned aircraft systems issued under section 45502(b)(1).

 

§ 45509. Special rules for model aircraft

“(a) In General.—Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft or an aircraft being developed as a model aircraft (other than the registration of certain model aircraft pursuant to section 44103), if—

“(1) the aircraft is flown strictly for hobby or recreational use;

“(2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a community-based organization;

“(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;

“(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft;

“(5) the aircraft is not operated over or within the property of a fixed site facility that operates amusement rides available for use by the general public or the property extending 500 lateral feet beyond the perimeter of such facility unless the operation is authorized by the owner of the amusement facility; and

“(6) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).

“(b) Commercial Operation For Instructional Or Educational Purposes.—A flight of an unmanned aircraft shall be treated as a flight of a model aircraft for purposes of subsection (a) (regardless of any compensation, reimbursement, or other consideration exchanged or incidental economic benefit gained in the course of planning, operating, or supervising the flight), if the flight is—

“(1) conducted for instructional or educational purposes; and

“(2) operated or supervised by a member of a community-based organization recognized pursuant to subsection (e).

“(c) Statutory Construction.—Nothing in this section may be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.

“(d) Community-Based Organization Defined.—In this section, the term ‘community-based organization’ means an entity that—

“(1) is described in section 501(c)(3) of the Internal Revenue Code of 1986;

“(2) is exempt from tax under section 501(a) of the Internal Revenue Code of 1986;

“(3) the mission of which is demonstrably the furtherance of model aviation;

“(4) provides a comprehensive set of safety guidelines for all aspects of model aviation addressing the assembly and operation of model aircraft and that emphasize safe aeromodeling operations within the national airspace system and the protection and safety of individuals and property on the ground;

“(5) provides programming and support for any local charter organizations, affiliates, or clubs; and

“(6) provides assistance and support in the development and operation of locally designated model aircraft flying sites.

“(e) Recognition Of Community-Based Organizations.—Not later than 180 days after the date of enactment of this section, the Administrator shall establish, and make available to the public, a process for recognizing community-based organizations that meet the eligibility criteria under subsection (d).

 

§ 45510. Carriage of property for compensation or hire

“(a) In General.—Not later than 1 year after the date of enactment of this section, the Secretary of Transportation shall issue a final rule authorizing the carriage of property by operators of small unmanned aircraft systems for compensation or hire within the United States.

“(b) Contents.—The final rule required under subsection (a) shall provide for the following:

“(1) SMALL UAS AIR CARRIER CERTIFICATE.—The Administrator of the Federal Aviation Administration, at the direction of the Secretary, shall establish a small UAS air carrier certificate for persons that undertake directly, or by lease or other arrangement, the operation of small unmanned aircraft systems to carry property in air transportation, including commercial fleet operations with highly automated unmanned aircraft systems. The requirements to obtain a small UAS air carrier certificate shall—

“(A) account for the unique characteristics of highly automated small unmanned aircraft systems; and

“(B) include only those obligations necessary for the safe operation of small unmanned aircraft systems.

“(2) SMALL UAS AIR CARRIER CERTIFICATION PROCESS.—The Administrator, at the direction of the Secretary, shall establish a process for the issuance of a small UAS air carrier certificate described in paragraph (1) that is streamlined, simple, performance-based, and risk-based. Such certification process shall consider—

“(A) safety and the mitigation of operational risks from highly automated small unmanned aircraft systems to the safety of other aircraft, and persons and property on the ground;

“(B) the safety and reliability of highly automated small unmanned aircraft system design, including technological capabilities and operational limitations to mitigate such risks; and

“(C) the competencies and compliance programs of manufacturers, operators, and companies that both manufacture and operate small unmanned aircraft systems and components.

“(3) SMALL UAS AIR CARRIER CLASSIFICATION.—The Secretary shall develop a classification system for small unmanned aircraft systems air carriers to establish economic authority for the carriage of property by small unmanned aircraft systems for compensation or hire. Such classification shall only require—

“(A) registration with the Department of Transportation; and

“(B) a valid small UAS air carrier certificate as described in paragraph (1).

 

§ 45511. Micro UAS operations

“(a) In General.—Not later than 60 days after the date of enactment of this section, the Administrator of the Federal Aviation Administration shall charter an aviation rulemaking advisory committee to develop recommendations for regulations under which any person may operate a micro unmanned aircraft system, the aircraft component of which weighs 4.4 pounds or less, including payload, without the person operating the system being required to pass any airman certification requirement, including any requirements under section 44703, part 61 of title 14, Code of Federal Regulations, or any other rule or regulation relating to airman certification.

“(b) Considerations.—In developing recommendations for the operation of micro unmanned aircraft systems under subsection (a), the members of the aviation rulemaking advisory committee shall consider rules for operation of such systems—

“(1) at an altitude of less than 400 feet above ground level;

“(2) with an airspeed of not greater than 40 knots;

“(3) within the visual line of sight of the operator;

“(4) during the hours between sunrise and sunset;

“(5) by an operator who has passed an aeronautical knowledge and safety test administered by the Federal Aviation Administration online specifically for the operation of micro unmanned aircraft systems, with such test being of a length and difficulty that acknowledges the reduced operational complexity and low risk of micro unmanned aircraft systems;

“(6) not over unprotected persons uninvolved in its operation; and

“(7) at least 5 statute miles from the geographic center of a tower-controlled airport or airport denoted on a current Federal Aviation Administration-published aeronautical chart, except that a micro unmanned aircraft system may be operated closer than 5 statute miles to the airport if the operator—

“(A) provides prior notice to the airport operator; and

“(B) receives, for a tower-controlled airport, prior approval from the air traffic control facility located at the airport.

“(c) Consultation.—

“(1) IN GENERAL.—In developing recommendations for recommended regulations under subsection (a), the aviation rulemaking advisory committee shall consult with—

“(A) unmanned aircraft systems stakeholders, including manufacturers of micro unmanned aircraft systems;

“(B) community-based aviation organizations;

“(C) the Center of Excellence for Unmanned Aircraft Systems; and

“(D) appropriate Federal agencies.

“(2) FACA.—The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to an aviation rulemaking advisory committee chartered under this section.

“(d) Rulemaking.—Not later than 180 days after the date of receipt of the recommendations under subsection (a), the Administrator shall issue regulations incorporating recommendations of the aviation rulemaking advisory committee that provide for the operation of micro unmanned aircraft systems in the United States—

“(1) without an airman certificate; and

“(2) without an airworthiness certificate for the associated unmanned aircraft.

“(e) Scope Of Regulations.—

“(1) IN GENERAL.—In determining whether a person may operate an unmanned aircraft system under 1 or more of the circumstances described under paragraphs (1) through (3) of subsection (b), the Administrator shall use a risk-based approach and consider, at a minimum, the physical and functional characteristics of the unmanned aircraft system.

“(2) LIMITATION.—The Administrator may only issue regulations under this section for unmanned aircraft systems that the Administrator determines may be operated safely in the national airspace system pursuant to those regulations.

“(f) Rules Of Construction.—Nothing in this section may be construed—

“(1) to prohibit a person from operating an unmanned aircraft system under a circumstance described under paragraphs (1) through (3) of subsection (b) if—

“(A) the circumstance is allowed by regulations issued under this section; and

“(B) the person operates the unmanned aircraft system in a manner prescribed by the regulations; or

“(2) to limit or affect in any way the Administrator’s authority to conduct a rulemaking, make a determination, or carry out any activity related to unmanned aircraft or unmanned aircraft systems under any other provision of law.”.

 

(b) Conforming Amendments.—

(1) REPEALS.—

(A) IN GENERAL.—Sections 332(a), 332(b), 332(d), 333, 334, and 336 of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note) are repealed.

(B) CLERICAL AMENDMENT.—The items relating to sections 333, 334, and 336 of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note) in the table of contents contained in section 1(b) of that Act are repealed.

(2) PENALTIES.—Section 46301 of title 49, United States Code, is amended—

(A) in subsection (a)—

(i) in paragraph (1)(A) by inserting “chapter 455,” after “chapter 451,”; and

(ii) in paragraph (5)(A)(i) by striking “or chapter 451,” and inserting “chapter 451, chapter 455,”;

(B) in subsection (d)(2) by inserting “chapter 455,” after “chapter 451,”; and

(C) in subsection (f)(1)(A)(i) by striking “or chapter 451” and inserting “chapter 451, or chapter 455”.

(3) CLERICAL AMENDMENT.—The analysis for subtitle VII of title 49, United States Code, is amended by inserting after the item relating to chapter 453 the following:

“455. Unmanned aircraft systems …………………………………………………
45501”.

SEC. 333. UNMANNED AIRCRAFT TEST RANGES.

(a) Extension Of Program.—Section 332(c)(1) of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note) is amended by striking “September 30, 2019” and inserting “the date that is 6 years after the date of enactment of the FAA Reauthorization Act of 2018”.

(b) Sense-And-Avoid And Beyond Line Of Sight Systems At Test Ranges.—

(1) IN GENERAL.—To the extent consistent with aviation safety, the Administrator of the Federal Aviation Administration shall permit and encourage flights of unmanned aircraft equipped with sense-and-avoid and beyond line of sight systems at the 6 test ranges designated under section 332(c) of the FAA Modernization and Reform Act of 2012.

(2) WAIVERS.—In carrying out paragraph (1), the Administrator may waive the requirements of section 44711 of title 49, United States Code, including related regulations, to the extent consistent with aviation safety.

(c) Test Range Defined.—

(1) IN GENERAL.—In this section, the term “test range” means a defined geographic area where research and development are conducted as authorized by the Administrator of the Federal Aviation Administration.

(2) INCLUSIONS.—Such term includes any of the 6 test ranges established by the Administrator of the Federal Aviation Administration under section 332(c) of the FAA Modernization and Reform Act of 2012, as in effect on the day before the date of enactment of this subsection, and any public entity authorized by the Federal Aviation Administration as an unmanned aircraft system flight test center before January 1, 2009.

 

SEC. 334. SENSE OF CONGRESS REGARDING UNMANNED AIRCRAFT SAFETY.

It is the sense of Congress that—

(1) the unauthorized operation of unmanned aircraft near airports presents a serious hazard to aviation safety;

(2) a collision between an unmanned aircraft and a conventional aircraft in flight could jeopardize the safety of persons aboard the aircraft and on the ground;

(3) Federal aviation regulations, including sections 91.126 through 91.131 of title 14, Code of Federal Regulations, prohibit unauthorized operation of an aircraft in controlled airspace near an airport;

(4) Federal aviation regulations, including section 91.13 of title 14, Code of Federal Regulations, prohibit the operation of an aircraft in a careless or reckless manner so as to endanger the life or property of another;

(5) the Administrator of the Federal Aviation Administration should pursue all available civil and administrative remedies available to the Administrator, including referrals to other government agencies for criminal investigations, with respect to persons who operate unmanned aircraft in an unauthorized manner;

(6) the Administrator should place particular priority on continuing measures, including partnerships with nongovernmental organizations, to educate the public about the dangers to the public safety of operating unmanned aircraft near airports without the appropriate approvals or authorizations; and

(7) manufacturers and retail sellers of small unmanned aircraft systems should take steps to educate consumers about the safe and lawful operation of such systems.

 

SEC. 335. UAS PRIVACY REVIEW.

(a) Review.—The Secretary of Transportation, in consultation with the heads of appropriate Federal agencies, appropriate State and local officials, and subject-matter experts and in consideration of relevant efforts led by the National Telecommunications and Information Administration, shall carry out a review to identify any potential reduction of privacy specifically caused by the integration of unmanned aircraft systems into the national airspace system.

(b) Consultation.—In carrying out the review, the Secretary shall consult with the National Telecommunications and Information Administration of the Department of Commerce on its ongoing efforts responsive to the Presidential memorandum titled “Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems” and dated February 15, 2015.

(c) Report.—Not later than 180 days after the date of enactment of this Act, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report on the results of the review required under subsection (a).

 

SEC. 336. PUBLIC UAS OPERATIONS BY TRIBAL GOVERNMENTS.

(a) Public UAS Operations By Tribal Governments.—Section 40102(a)(41) of title 49, United States Code, is amended by adding at the end the following:

“(F) An unmanned aircraft that is owned and operated by, or exclusively leased for at least 90 continuous days by, an Indian Tribal government, as defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122), except as provided in section 40125(b).”.

(b) Conforming Amendment.—Section 40125(b) of title 49, United States Code, is amended by striking “or (D)” and inserting “(D), or (F)”.

 

SEC. 337. EVALUATION OF AIRCRAFT REGISTRATION FOR SMALL UNMANNED AIRCRAFT.

(a) Metrics.—Beginning not later than 180 days after the date of enactment of this Act, the Administrator of the Federal Aviation Administration shall develop and track metrics to assess compliance with and effectiveness of the registration of small unmanned aircraft systems by the Federal Aviation Administration pursuant to the interim final rule issued on December 16, 2015, entitled “Registration and Marking Requirements for Small Unmanned Aircraft” (80 Fed. Reg. 78593) and any subsequent final rule, including metrics with respect to—

(1) the levels of compliance with the interim final rule and any subsequent final rule;

(2) the number of enforcement actions taken by the Administration for violations of or noncompliance with the interim final rule and any subsequent final rule, together with a description of the actions; and

(3) the effect of the interim final rule and any subsequent final rule on compliance with any fees associated with the use of small unmanned aircraft systems.

(b) Evaluation.—The Inspector General of the Department of Transportation shall evaluate—

(1) the Administration’s progress in developing and tracking the metrics set forth in subsection (a); and

(2) the reliability, effectiveness, and efficiency of the Administration’s registration program for small unmanned aircraft.

(c) Report.—Not later than 1 year after the date of enactment of this Act, the Inspector General of the Department of Transportation shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report containing—

(1) the results of the evaluation required under subsection (b); and

(2) recommendations to the Administrator and Congress for improvements to the registration process for small unmanned aircraft.

 

SEC. 338. STUDY ON ROLES OF GOVERNMENTS RELATING TO LOW-ALTITUDE OPERATION OF SMALL UNMANNED AIRCRAFT.

(a) In General.—Not later than 60 days after the date of enactment of this Act, the Inspector General of the Department of Transportation shall initiate a study on—

(1) the regulation and oversight of the low-altitude operations of small unmanned aircraft and small unmanned aircraft systems; and

(2) the appropriate roles and responsibilities of Federal, State, local, and Tribal governments in regulating and overseeing the operations of small unmanned aircraft in airspace 400 feet above ground level and below.

(b) Considerations.—In carrying out the study, the Inspector General shall consider, at a minimum—

(1) the recommendations of Task Group 1 of the Drone Advisory Committee chartered by the Federal Aviation Administration on August 31, 2016;

(2) the legal and policy requirements necessary for the safe and financially viable development and growth of the unmanned aircraft industry;

(3) the interests of Federal, State, local, and Tribal governments affected by low-altitude operations of small unmanned aircraft;

(4) the existing authorities of Federal, State, local, and Tribal governments to protect the interests referenced in paragraph (3);

(5) the degree of regulatory consistency required for the safe and financially viable growth and development of the unmanned aircraft industry;

(6) the degree of local variance possible among regulations consistent with the safe and financially viable growth and development of the unmanned aircraft industry;

(7) the appropriate roles of State, local, and Tribal governments in regulating the operations of small unmanned aircraft within the lateral boundaries of their jurisdiction in the categories of airspace described in subsection (a)(2);

(8) the subjects and types of regulatory authority that should remain with the Federal Government;

(9) the infrastructure requirements necessary for monitoring the low-altitude operations of small unmanned aircraft and enforcing applicable laws;

(10) the number of small businesses involved in the various sectors of the unmanned aircraft industry and operating as primary users of small unmanned aircraft; and

(11) any best practices, lessons learned, or policies of jurisdictions outside the United States relating to local or regional regulation and oversight of small unmanned aircraft and other emergent technologies.

(c) Report To Congress.—Not later than 180 days after initiating the study, the Inspector General shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report on the results of the study.

 

SEC. 339. STUDY ON FINANCING OF UNMANNED AIRCRAFT SERVICES.

(a) In General.—Not later than 60 days after the date of enactment of this Act, the Comptroller General of the United States shall initiate a study on appropriate fee mechanisms to recover the costs of—

(1) the regulation and safety oversight of unmanned aircraft and unmanned aircraft systems; and

(2) the provision of air navigation services to unmanned aircraft and unmanned aircraft systems.

(b) Considerations.—In carrying out the study, the Comptroller General shall consider, at a minimum—

(1) the recommendations of Task Group 3 of the Drone Advisory Committee chartered by the Federal Aviation Administration on August 31, 2016;

(2) the total annual costs incurred by the Federal Aviation Administration for the regulation and safety oversight of activities related to unmanned aircraft;

(3) the annual costs attributable to various types, classes, and categories of unmanned aircraft activities;

(4) air traffic services provided to unmanned aircraft operating under instrument flight rules, excluding public aircraft;

(5) the number of full-time Federal Aviation Administration employees dedicated to unmanned aircraft programs;

(6) the use of privately operated UTM and other privately operated unmanned aircraft systems;

(7) the projected growth of unmanned aircraft operations for various applications and the estimated need for regulation, oversight, and other services;

(8) the number of small businesses involved in the various sectors of the unmanned aircraft industry and operating as primary users of unmanned aircraft; and

(9) any best practices or policies utilized by jurisdictions outside the United States relating to partial or total recovery of regulation and safety oversight costs related to unmanned aircraft and other emergent technologies.

(c) Report To Congress.—Not later than 180 days after initiating the study, the Comptroller General shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report containing recommendations on appropriate fee mechanisms to recover the costs of regulating and providing air navigation services to unmanned aircraft and unmanned aircraft systems.

 

SEC. 340. UPDATE OF FAA COMPREHENSIVE PLAN.

(a) In General.—Not later than 270 days after the date of enactment of this Act, the Secretary of Transportation shall update the comprehensive plan developed pursuant to section 332 of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note) to develop a concept of operations for the integration of unmanned aircraft into the national airspace system.

(b) Considerations.—In carrying out the update, the Secretary shall consider, at a minimum—

(1) the potential use of UTM and other technologies to ensure the safe and lawful operation of unmanned aircraft in the national airspace system;

(2) the appropriate roles, responsibilities, and authorities of government agencies and the private sector in identifying and reporting unlawful or harmful operations and operators of unmanned aircraft;

(3) the use of models, threat assessments, probabilities, and other methods to distinguish between lawful and unlawful operations of unmanned aircraft; and

(4) appropriate systems, training, intergovernmental processes, protocols, and procedures to mitigate risks and hazards posed by unlawful or harmful operations of unmanned aircraft systems.

(c) Consultation.—The Secretary shall carry out the update in consultation with representatives of the aviation industry, Federal agencies that employ unmanned aircraft systems technology in the national airspace system, and the unmanned aircraft systems industry.

 

SEC. 341. COOPERATION RELATED TO CERTAIN COUNTER-UAS TECHNOLOGY.

In matters relating to the use of systems in the national airspace system intended to mitigate threats posed by errant or hostile unmanned aircraft system operations, the Secretary of Transportation shall consult with the Secretary of Defense to streamline deployment of such systems by drawing upon the expertise and experience of the Department of Defense in acquiring and operating such systems consistent with the safe and efficient operation of the national airspace system..

 

………

SEC. 532. PART 107 IMPLEMENTATION IMPROVEMENTS.

(a) In General.—Not later than 30 days after the date of enactment of this section, the Administrator of the Federal Aviation Administration shall publish a direct final rule—

(1) revising section 107.205 of title 14, Code of Federal Regulations, by striking the second sentence of subsections (a) and (c); and

(2) revising section 107.25 of such title by striking “and is not transporting another person’s property for compensation or hire”.

(b) Determination Of Waiver.—In determining whether to grant a waiver under part 107 of title 14, Code of Federal Regulations, to authorize transportation of another’s property for compensation or hire beyond the visual line of sight of the remote pilot, from a moving vehicle, or over people, the Administrator shall consider the technological capabilities of the unmanned aircraft system, the qualifications of the remote pilot, and the operational environment.

 

SEC. 533. PART 107 TRANSPARENCY AND TECHNOLOGY IMPROVEMENTS.

(a) Transparency.—Not later than 30 days after the date of enactment of this Act, the Administrator of the Federal Aviation Administration shall publish on the Federal Aviation Administration website a representative sample of the safety justifications, offered by applicants for small unmanned aircraft system waivers and airspace authorizations, that have been approved by the Administration for each regulation waived or class of airspace authorized, except that any published justification shall not reveal proprietary or commercially sensitive information.

(b) Technology Improvements.—Not later than 90 days after the date of enactment of this Act, the Administrator shall revise the online waiver and certificates of authorization processes—

(1) to provide real time confirmation that an application filed online has been received by the Administration; and

(2) to provide an applicant with an opportunity to review the status of the applicant’s application.

………

Subtitle C—Unmanned Aircraft Systems

SEC. 721. UNMANNED AIRCRAFT SYSTEMS RESEARCH AND DEVELOPMENT ROADMAP.

No funds are authorized to be appropriated for the Office of the Administrator for a fiscal year unless the Secretary has submitted the unmanned aircraft systems roadmap to Congress on an annual basis as required under section 45502(a) of title 49, United States Code, (as added by this Act).

 

SEC. 722. PROBABILISTIC METRICS FOR EXEMPTIONS.

(a) Study.—Not later than 30 days after the date of enactment of this Act, the Administrator shall commission an independent study to—

(1) develop parameters to conduct research and development for probabilistic metrics to enable the identification of hazards and the assessment of risks as necessary to make determinations under section 45505(a) of title 49, United States Code, (as added by this Act) that certain unmanned aircraft systems may operate safely in the national airspace system;

(2) identify additional research needed to more effectively develop and use such metrics and make such determinations; and

(3) in developing parameters for probabilistic metrics, this study shall take into account the utility of performance standards to make determinations under section 45505(a) of title 49, United States Code, (as added by this Act).

(b) Consideration Of Results.—The Administrator shall consider the results of the study conducted under subsection (a) when making a determination described in subsection (a)(1).

(c) Report.—Not later than 9 months after the date of enactment of this Act, the Administrator shall transmit the results of the study conducted under subsection (a) to the Committee on Science, Space, and Technology of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate.

 

SEC. 723. PROBABILISTIC ASSESSMENT OF RISKS.

The Administrator shall conduct research and development to enable a probabilistic assessment of risks to inform requirements for standards for operational certification of public unmanned aircraft systems in the national airspace.

 

SEC. 724. UNMANNED AERIAL VEHICLE-MANNED AIRCRAFT COLLISION RESEARCH.

(a) Research.—The Administrator shall coordinate with NASA to conduct comprehensive testing of unmanned aerial vehicles colliding with a manned aircraft, including—

(1) collisions between unmanned aerial vehicles of various sizes, traveling at various speeds, and commercial jet airliners of various sizes, traveling at various speeds;

(2) collisions between unmanned aerial vehicles of various sizes, traveling at various speeds, and propeller planes of various sizes, traveling at various speeds;

(3) collisions between unmanned aerial vehicles of various sizes, traveling at various speeds, and blimps of various sizes, traveling at various speeds;

(4) collisions between unmanned aerial vehicles of various sizes, traveling at various speeds, and rotorcraft of various sizes, traveling at various speeds; and

(5) collisions between unmanned aerial vehicles and various parts of the aforementioned aircraft, including—

(A) windshields;

(B) noses;

(C) engines;

(D) radomes;

(E) propellers; and

(F) wings.

(b) Report.—Not later than one year after the date of enactment of this Act, the Administrator shall transmit a report summarizing the costs and results of research under this section to the Committee on Science, Space, and Technology of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate.

 

SEC. 725. SPECIAL RULE FOR RESEARCH AND DEVELOPMENT.

Except as necessary to support enforcement action under applicable provisions of law against persons operating unmanned aircraft in a manner that endangers the safety of the national airspace system, notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into FAA plans and policies, the Administrator may not promulgate any rule or regulation regarding the operation of an unmanned aircraft system—

(1) that is flown strictly for research and development use;

(2) that is operated less than 400 feet above the ground and in Class G airspace;

(3) that is operated in a manner that does not interfere with and gives way to any manned aircraft; and

(4) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (unmanned aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).

 

SEC. 726. BEYOND LINE-OF-SIGHT RESEARCH AND DEVELOPMENT.

(a) Amendments.—Section 332(c)(2) the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note) is amended—

(1) by striking “Administrator shall” and inserting “Administrator”;

(2) at the beginning of each of subparagraphs (A) through (F), by inserting “shall”;

(3) at the end of subparagraph (E), by striking “and”;

(4) at the end of subparagraph (F), by striking the period and inserting a semicolon; and

(5) by adding at the end the following new subparagraphs:

“(G) shall allow beyond line-of-sight operation of unmanned aircraft systems to be flown within the boundaries of a test range established under this subsection;

“(H) may promulgate regulations governing beyond line-of-sight operation of unmanned aircraft systems flown within the boundaries of a test range established under this subsection for the purposes of public safety; and

“(I) shall allow NASA to authorize operation of beyond line-of-sight unmanned aircraft systems within the boundaries of any NASA center or facility.”.

(b) Statutory Construction.—Nothing in the amendments made by subsection (a) shall be construed to limit the authority of the Administrator to pursue enforcement action under applicable provisions of law against persons operating unmanned aircraft in a manner that endangers the safety of the national airspace system.

……….

SEC. 745. ELECTROMAGNETIC SPECTRUM RESEARCH AND DEVELOPMENT.

The Administrator shall develop a program to research the use of spectrum in the civil aviation domain, including aircraft and unmanned aircraft systems. This research shall, at a minimum, address—

(1) how, operating within an Unmanned Aircraft System Traffic Management system, unmanned aircraft systems can safely use, for control link, tracking, diagnostics, payload communication, collaborative-collision avoidance (e.g. vehicle-to-vehicle communications), and other purposes—

(A) aviation-protected spectrum;

(B) commercial communications networks, such as mobile communications networks; and

(C) any other licensed or unlicensed spectrum;

(2) how the reallocation of spectrum assigned for use within frequency bands adjacent to those allocated for position, navigation, and timing may impact the safety of civil aviation; and

(3) measures to protect and mitigate against spectrum interference in frequency bands used by the civil aviation community to ensure public safety.

 


Safeguarding America’s Skies Act of 2018 (H.R.5366)

Brief Summary of the Safeguarding America’s Skies Act:

Congresswoman Vicky Hartzler (MO-04) introduced the Safeguarding America’s Skies Act on 3/21/2018. Congresswoman Hartzler explained in a press release, “Title 18 also prevents federal agencies from using tailored jamming or protocol manipulation to interdict drones because it is considered intruding on a ‘protected computer.’ The National Defense Authorization Act for Fiscal Years 2017 and 2018 provided the Department of Defense with relief from Title 18 restrictions in order to protect certain military installations and assets. Unfortunately, federal agencies like the Department of Justice and the Department of Homeland Security continue to have their hands tied preventing them from interdicting a drone that poses a reasonable threat, such as those carrying drugs across the border.” For a much more in-depth legal discussion on all the legal issues surrounding countering drones, see my article 7 Big Problems With Counter Drone Technology.

The other major point is that this Act tells the Secretary of Transportation to create a ” final rule requiring remote identification and tracking of UAVs, including UAVs for recreational use, to ensure that cooperative aircraft are identified.”

Like this article? This article is part of my Drone Legislation Database.

Notable Points of the Safeguarding America’s Skies Act:

  • Calls for the creation of a final rule for remote identification and tracking of unmanned aircraft.
  • Tells DHS, DOJ, DOT, FCC, and NTIA to all coordinate to minimize harmful interference to licensed and unlicensed communications.
  • The unmanned aircraft that is seized is subject to forfeiture to the United States.
  • The information pertaining to the technology, procedures, and protocols used to carry out this section, including any regulations or guidance issued to carry out this section, shall be exempt from the Freedom of Information Act.

Pros:

  • Gives DOJ and DHS the ability to counter border drug running and prison drops.
  • If DOJ and DHS can start using these pieces of equipment more, this will then create a market for counter UAS equipment. Companies will step in to fill this need which will result in more jobs.
  • If companies are competing, more money will be  pumped into researching better and better CUAS equipment. This will also have a spill over effect in making our military stronger with their CUAS abilities.

Cons:

  • If you are going to give DOJ and DHS the ability to counter drones, why not also give the Department of the Interior and the U.S. Department of Agriculture the use to counter the drones being flown around wildfires?
  • The definition of  “covered facility or asset” does not exactly make sense as defined in (C) in relationship to facilities or assets.
  • Remote ID is not liked by the unmanned aircraft community and this could result in potential push back which could potentially jeopardize the entire act.
  • What about the state and local law enforcement?
  • It tells the DOT to get a final rule within 1 year. Rule making on average takes around 2-3 years.  What is the penalty if the final rule is not promulgated in time?
  • Says nothing regarding the FAA’s relaxed enforcement philosophy which is primarily education over enforcement. This policy needs to change.

Questions Left Unanswered:

  • So what? The FAA rarely prosecutes anyone. Why all the new regulations when the FAA does little with the drone regulations they currently have? Do you know how many FAA enforcement actions have happened from 2014 to the summer of 2017?  48
  • This will disproportionately hurt the law abiding. You’ll have three groups of people: (1) the law abiding, (2) the clueless, (3) and the illegal. Blowing the drone out of the sky will affect all 3 groups but remote ID and tracking will most likely affect only the law-abiding group unless there is a more robust system put in place that educates and ties the drone to a person. This whole “honor system” of registering the drone ended with massive amounts of non-compliance. Just compare the estimated drones sold versus drones registered. If you want a system of accountability, require at the point of sale registration.
  • What about all the drones already out there? Are you grandfathering them in? Do we have to retrofit them? If a $5 registration that could be easily completed online resulted in wide scale non-compliance, what type of compliance do you think you’ll get if people have to spend more than $5?
  • Won’t jamming hinder integration of drones into the national airspace? Unmanned aircraft systems have a communications link component and also use GPS for positioning.  If you open the door to jamming of the ISM frequencies or the GPS frequencies, this can have all sorts of trickle down effects. Imagine 5 years from now where more drones are flying in the NAS. If a jammer goes off, this could affect other unmanned aircraft flying in the area. Do commercial drone operators operating near sporting events have to plan for potential GPS and ISM jamming?
  • How will this affect manned aviation using GPS during IFR? Jamming GPS signals or spoofing them can cause all sorts of problems with manned aircraft operations.
  • It says remote identification AND tracking.  Are these two separate things? An equipment capability plus some type of tracking? Perhaps something similar to a gun registry?

Need help with waivers? Click here to learn more.

 

Actual Text of Safeguarding America’s Skies Act:

To amend title 18, United States Code, to provide for certain authorized actions regarding interdiction of unmanned aircraft, and for other purposes.

 

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Safeguarding America’s Skies Act of 2018’’.

SEC. 2. AUTHORIZED ACTIONS REGARDING INTERDICTION OF UNMANNED AIRCRAFT.

(a) IN GENERAL.—Chapter 1 of part I of title 18, United States Code, is amended by adding at the end of the following:

 

‘‘SEC. 28. AUTHORIZED ACTIONS REGARDING INTERDICTION OF UNMANNED AIRCRAFT.

 

‘‘(a) IN GENERAL.—Notwithstanding any other pro vision of this title, except as described in paragraph (1), the Secretary of Homeland Security and the Attorney General may, for their respective departments, authorize officers, employees, and contractors of the department assigned with duties that include safety, security, or protection of personnel, facilities, or assets of the department, to take such actions described in subsection (b) that are necessary to mitigate the threat (as defined by the Secretary of Homeland Security and the Attorney General, in consultation with the Secretary of Transportation) that an unauthorized UAV poses to the safety or security of a covered facility or asset. In taking such actions, the agency shall—

‘‘(1) avoid any infringement of the privacy and civil rights of the people of the United States and the freedom of the press consistent with the First and Fourth Amendments, including with regard to the testing of any equipment and the interception or acquisition of communications;

‘(2) limit the geographic reach and the duration of such actions to only those areas and timeframes that are reasonably necessary to address a reasonable threat; and

‘‘(3) use reasonable care not to interfere with non-targeted manned or unmanned aircraft, communications, equipment, facilities, or services.

‘‘(b) ACTIONS AUTHORIZED.—

‘‘(1) ACTIONS DESCRIBED.—The actions described in this subsection are as follows:

‘‘(A) Detect, identify, monitor, and track, without prior consent, a UAV, including by means of interception of or other access to wire, oral, electronic, or radio communications or signals transmitted to or by the UAV, to evaluate whether the UAV poses a reasonable threat to the safety or security of a covered facility or asset.

‘‘(B) Warn the operator of the UAV, including by passive or active, and direct or indirect physical, electronic, radio, and electromagnetic means.

(C) Redirect, alter control, disable, disrupt, seize, or confiscate, without prior consent, a UAV that poses a reasonable threat as determined under subsection (a), including by intercepting, substituting, or disrupting wire, oral, electronic, or radio communications or signals transmitted to or by UAV.

‘‘(D) Use reasonable force to disable, disrupt, damage, or destroy a small unmanned aircraft, unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo that poses a reasonable threat to the safety or security of a covered facility or asset.

‘‘(E) Conduct research, testing, training on, or evaluation of any equipment, including any electronic equipment, to determine its capability and utility to enable.

‘‘(2) REGULATIONS AND GUIDANCE.—The Secretary of Homeland Security and the Attorney General, in coordination with the Secretary of Transportation, may make rules and shall issue guidance in their respective areas to carry out this section.

‘‘(3) AVOIDANCE OF DUPLICATION.—The Secretary of Homeland Security, the Attorney General, and the Secretary of Transportation shall coordinate and avoid duplication in the development of guidance under this paragraph or otherwise implementing this section.

(4) MINIMIZATION OF HARMFUL INTERFERENCE.—The Secretary of Homeland Security, the Attorney General, and the Secretary of Transportation shall also coordinate with the Federal Communications Commission and the National Telecommunications and Information Administration to ensure that all actions taken and guidance and rules made under this subsection minimize harmful interference to licensed and unlicensed communications, devices, and services authorized by the Federal Communications Commission.

(5) FINAL RULE REGARDING REMOTE IDENTIFICATION AND TRACKING OF UAVS.—Not later than one year after the effective date of this section the Secretary of Transportation shall issue a final rule requiring remote identification and tracking of UAVs, including UAVs for recreational use, to ensure that cooperative aircraft are identified.

‘‘(c) FORFEITURE.—Any UAV described in subsection (a) that is seized by the Federal agency is subject to forfeiture to the United States.

‘‘(d) EXEMPTION FROM DISCLOSURE.—Information pertaining to the technology, procedures, and protocols used to carry out this section, including any regulations or guidance issued to carry out this section, shall be exempt from disclosure under section 552(b)(3) of title 5 and exempt from disclosure under State and local law requiring the disclosure of information.

‘‘(e) PRIVACY PROTECTION.—All actions taken and guidance and rules made under subsection (b)(2) shall ensure that—

‘‘(1) the interception or acquisition of or access to communications to or from UAV under this section is conducted in a manner consistent with the Fourth amendment to the Constitution and applicable provisions of Federal law;

‘‘(2) communications are intercepted, acquired, or accessed only to the extent necessary to mitigate the reasonable threat that an unmanned aircraft system or unmanned aircraft poses to the safety or security of a covered facility or asset;

‘‘(3) records of such communications are maintained only for as long as necessary and in no event for more than 180 days unless the Secretary of Homeland Security or the Attorney General reasonably determine that maintenance of such records—

‘‘(A) is necessary to support one or more safety or security functions of the Department of Homeland Security or the Department of Justice, respectively; or

‘‘(B) is required for a longer period to support a law enforcement agency or by any other applicable law or regulation; and

‘‘(4) such communications are not disclosed outside the Department of Homeland Security or the Department of Justice unless the disclosure, subject to paragraph (a)(1) above—

‘‘(A) would fulfill a safety or security function of the Department of Homeland Security or the Department of Justice;

‘‘(B) would support the Department of Defense, a civilian law enforcement agency, or the enforcement activities of a regulatory agency of the Federal Government in connection with a criminal or civil investigation of, or any regulatory action with regard to, an action described in subsection (b)(1); or

‘‘(C) is otherwise required by law or regulation.

‘‘(f) SCOPE OF AUTHORITY.—Nothing in this section shall be construed to provide the Secretary of Homeland Security or the Attorney General additional authorities beyond those described in (b)(1) without authorization by law.

‘‘(g) REPORT TO CONGRESS.—The Attorney General and Secretary of Homeland Security, shall each submit to Congress, not later than one year after enactment, and each year thereafter, a report that shall include, at minimum—

‘‘(1) a description of actions taken, guidance provided, and rules made pursuant to this section, including a summary of public comments submitted in relation to such guidance or rules;

‘‘(2) a description of each Department’s effortsto address privacy, civil rights, and civil liberties issues implicated by the actions permitted by this section and other Federal and State government policies affecting UAVs;

‘‘(3) the number of UAVs that have been subject to each of the actions taken under subsection (b)(2), broken out by action;

‘‘(4) actions taken by each Department to inform the public of covered facilities and assets authorized by this section;

‘‘(5) implementation costs; or

‘‘(6) a description of any revisions to this section that may be desirable.

‘‘(h) DEFINITIONS.—In this section:

‘‘(1) The term ‘cooperative aircraft’ means aircraft that have an electronic means of identification aboard in operation.

‘‘(2) The term ‘covered facility or asset’ means any facility or asset that—

‘‘(A) is identified by the Secretary of Homeland Security or the Attorney General;

‘‘(B) is located in the United States (including the territories and possessions of the United States): and

‘‘(C) relates to—

‘‘(i) the buildings and grounds leased, owned, or operated by or for the Federal Government, including Federal Facility protection operations;

‘‘(ii) authorized protective operations, including but not limited to the protection of Federal jurists, court officers, witnesses, and other persons;

‘‘(iii) penal, detention, correctional, and judicial operations;

‘‘(iv) National Security Special Events, Special Event Assessment Ratings Events, or other mass gatherings or events that are reasonably assessed by the Department of Justice to be a potential target for terrorism or other criminal activity;

‘‘(v) active Federal law enforcement investigations;

‘‘(vi) operations that counter terrorism, narcotics, and transnational criminal organizations.

‘‘(vii) securing authorized vessels, whether moored or underway;

‘‘(viii) protection operations pursuant to section 3056;

‘‘(ix) critical infrastructure;

‘‘(x) Emergency Response Operations;

‘‘(xi) National Disaster Areas if it is determined by the Secretary of Homeland Security that unauthorized access to the airspace would restrict recovery efforts;

‘‘(xii) Natural or Hazardous Disaster Areas if it is determined by the Secretary of Homeland Security that unauthorized access to the airspace would restrict recovery efforts; and

‘‘(xiii) other areas identified by the President.

‘‘(3) The term ‘UAV’ means a small unmanned aircraft, unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, pay load, or cargo.

‘‘(4) The terms ‘unmanned aircraft,’ ‘small un manned aircraft,’ and ‘unmanned aircraft system’ have the meanings given those terms in section 331 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).

‘‘(5) The terms ‘intercept’ and ‘wire, oral, electronic, or radio communications’ have the meaning given those terms in section 2510.

‘‘(6) The term ‘critical infrastructure’ has the meaning given that term in section 2339D except that the Attorney General may, in his or her determination, amend the definition for purposes of this section in the issuance of any guidance or rules made under subsection (b)(2).’’.

(b) CLERICAL AMENDMENT.—The table of sections for such chapter is amended by adding at the end the following:

‘‘28. Authorized actions regarding interdiction of unmanned aircraft.’’.

(c) CONFORMING AMENDMENTS.—Title 18, United States Code, is amended—

(1) in section 32, by adding at the end the following:

‘‘(d) Nothing in this section shall apply to any action lawfully taken under section 28.’’.

(2) in section 1030, by adding at the end the following:

‘‘(k) Nothing in this section shall apply to any action lawfully taken under section 28.’’.

(3) in section 1362 by adding at the end the following:

‘‘Nothing in this section shall apply to any action lawfully taken under section 28.’’;

(4) in section 1367, by adding at the end the following:

‘‘(c) Nothing in this section shall apply to any action lawfully taken under section 28.’’;

(5) in chapter 119—

(A) by adding at the end the following:

Ԥ 2523. Exception for interdiction of unmanned aircraft

‘‘Nothing in this chapter shall apply in the case of any action lawfully taken under section 28.’’.

(B) in the table of sections for such chapter, by adding at the end the following:

‘‘2523. Exception for interdiction of unmanned aircraft.’’; and

(6) in chapter 206—

(A) by adding at the end the following:

‘‘§ 3128. Exception for interdiction of unmanned aircraft

‘‘Nothing in this chapter shall apply in the case of any action lawfully taken under section 28.’’.

(B) in the table of sections for such chapter, by adding at the end the following:

‘‘3128. Exception for interdiction of unmanned aircraft.’’.

 


Drones & FAA Modernization Reform Act of 2012 (FMRA)(PL 112–95)

Subtitle B—Unmanned Aircraft Systems

SEC. 331. DEFINITIONS.

In this subtitle, the following definitions apply:
(1) ARCTIC.—The term ‘‘Arctic’’ means the United States zone of the Chukchi Sea, Beaufort Sea, and Bering Sea north of the Aleutian chain.
(2) CERTIFICATE OF WAIVER; CERTIFICATE OF AUTHORIZATION.—The terms ‘‘certificate of waiver’’ and ‘‘certificate of authorization’’ mean a Federal Aviation Administration grant of approval for a specific flight operation.
(3) PERMANENT AREAS.—The term ‘‘permanent areas’’ means areas on land or water that provide for launch, recovery, and operation of small unmanned aircraft.
(4) PUBLIC UNMANNED AIRCRAFT SYSTEM.—The term ‘‘public unmanned aircraft system’’ means an unmanned aircraft system that meets the qualifications and conditions required for operation of a public aircraft (as defined in section 40102 of title 49, United States Code).
(5) SENSE AND AVOID CAPABILITY.—The term ‘‘sense and avoid capability’’ means the capability of an unmanned aircraft to remain a safe distance from and to avoid collisions with other airborne aircraft.
(6) SMALL UNMANNED AIRCRAFT.—The term ‘‘small unmanned aircraft’’ means an unmanned aircraft weighing less than 55 pounds.
(7) TEST RANGE.—The term ‘‘test range’’ means a defined geographic area where research and development are conducted.

(8) UNMANNED AIRCRAFT.—The term ‘‘unmanned aircraft’’ means an aircraft that is operated without the possibility of direct human intervention from within or on the aircraft.
(9) UNMANNED AIRCRAFT SYSTEM.—The term ‘‘unmanned aircraft system’’ means an unmanned aircraft and associated elements (including communication links and the components that control the unmanned aircraft) that are required for the pilot in command to operate safely and efficiently in the national airspace system.

SEC. 332. INTEGRATION OF CIVIL UNMANNED AIRCRAFT SYSTEMS
INTO NATIONAL AIRSPACE SYSTEM.

(a) REQUIRED PLANNING FOR INTEGRATION.—

(1) COMPREHENSIVE PLAN.—Not later than 270 days after the date of enactment of this Act, the Secretary of Transportation, in consultation with representatives of the aviation industry, Federal agencies that employ unmanned aircraft systems technology in the national airspace system, and the unmanned aircraft systems industry, shall develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system.
(2) CONTENTS OF PLAN.—The plan required under paragraph (1) shall contain, at a minimum, recommendations or projections on—

(A) the rulemaking to be conducted under subsection (b), with specific recommendations on how the rulemaking will—

(i) define the acceptable standards for operation and certification of civil unmanned aircraft systems;
(ii) ensure that any civil unmanned aircraft system includes a sense and avoid capability; and
(iii) establish standards and requirements for the operator and pilot of a civil unmanned aircraft system, including standards and requirements for registration and licensing;

(B) the best methods to enhance the technologies and subsystems necessary to achieve the safe and routine operation of civil unmanned aircraft systems in the national airspace system;
(C) a phased-in approach to the integration of civil unmanned aircraft systems into the national airspace system;
(D) a timeline for the phased-in approach described under subparagraph (C);
(E) creation of a safe
(F) airspace designation for cooperative manned and unmanned flight operations in the national airspace system;
(G) establishment of a process to develop certification, flight standards, and air traffic requirements for civil unmanned aircraft systems at test ranges where such systems are subject to testing;
(H) the best methods to ensure the safe operation of civil unmanned aircraft systems and public unmanned aircraft systems simultaneously in the national airspace system; and
(I) incorporation of the plan into the annual NextGen Implementation Plan document (or any successor document) of the Federal Aviation Administration.

(3) DEADLINE.—The plan required under paragraph (1) shall provide for the safe integration of civil unmanned aircraft systems into the national airspace system as soon as practicable, but not later than September 30, 2015.
(4) REPORT TO CONGRESS.—Not later than 1 year after the date of enactment of this Act, the Secretary shall submit to Congress a copy of the plan required under paragraph (1).
(5) ROADMAP.—Not later than 1 year after the date of enactment of this Act, the Secretary shall approve and make available in print and on the Administration’s Internet Web site a 5-year roadmap for the introduction of civil unmanned aircraft systems into the national airspace system, as coordinated by the Unmanned Aircraft Program Office of the Administration. The Secretary shall update the roadmap annually.

(b) RULEMAKING.—Not later than 18 months after the date on which the plan required under subsection (a)(1) is submitted to Congress under subsection (a)(4), the Secretary shall publish in the Federal Register—

(1) a final rule on small unmanned aircraft systems that will allow for civil operation of such systems in the national airspace system, to the extent the systems do not meet the requirements for expedited operational authorization under section 333 of this Act;
(2) a notice of proposed rulemaking to implement the recommendations of the plan required under subsection (a)(1), with the final rule to be published not later than 16 months after the date of publication of the notice; and
(3) an update to the Administration’s most recent policy statement on unmanned aircraft systems, contained in Docket No. FAA–2006–25714.

(c) PILOT PROJECTS.—

(1) ESTABLISHMENT.—Not later than 180 days after the date of enactment of this Act, the Administrator shall establish a program to integrate unmanned aircraft systems into the national airspace system at 6 test ranges. The program shall terminate 5 years after the date of enactment of this Act.
(2) PROGRAM REQUIREMENTS.—In establishing the program under paragraph (1), the Administrator shall—

(A) safely designate airspace for integrated manned and unmanned flight operations in the national airspace system;
(B) develop certification standards and air traffic requirements for unmanned flight operations at test ranges;
(C) coordinate with and leverage the resources of the National Aeronautics and Space Administration and the Department of Defense;
(D) address both civil and public unmanned aircraft systems;
(E) ensure that the program is coordinated with the Next Generation Air Transportation System; and
(F) provide for verification of the safety of unmanned aircraft systems and related navigation procedures before integration into the national airspace system.

(3) TEST RANGE LOCATIONS.—In determining the location of the 6 test ranges of the program under paragraph (1), the Administrator shall—

(A) take into consideration geographic and climatic diversity;
(B) take into consideration the location of ground infrastructure and research needs; and
(C) consult with the National Aeronautics and Space Administration and the Department of Defense.

(4) TEST RANGE OPERATION.—A project at a test range shall be operational not later than 180 days after the date on which the project is established.

(5) REPORT TO CONGRESS.—

(A) IN GENERAL.—Not later than 90 days after the date of the termination of the program under paragraph (1), the Administrator shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure and the Committee on Science, Space, and Technology of the House of Representatives a report setting forth the Administrator’s findings and conclusions concerning the projects.

(B) ADDITIONAL CONTENTS.—The report under subparagraph

(A) shall include a description and assessment of the progress being made in establishing special use airspace to fill the immediate need of the Department of Defense—

(i) to develop detection techniques for small unmanned aircraft systems; and
(ii) to validate the sense and avoid capability and operation of unmanned aircraft systems.

(d) EXPANDING USE OF UNMANNED AIRCRAFT SYSTEMS IN ARCTIC.—

(1) IN GENERAL.—Not later than 180 days after the date of enactment of this Act, the Secretary shall develop a plan and initiate a process to work with relevant Federal agencies and national and international communities to designate permanent areas in the Arctic where small unmanned aircraft may operate 24 hours per day for research and commercial purposes. The plan for operations in these permanent areas shall include the development of processes to facilitate the safe operation of unmanned aircraft beyond line of sight. Such areas shall enable over-water flights from the surface to at least 2,000 feet in altitude, with ingress and egress routes from selected coastal launch sites.
(2) AGREEMENTS.—To implement the plan under paragraph (1), the Secretary may enter into an agreement with relevant national and international communities.
(3) AIRCRAFT APPROVAL.—Not later than 1 year after the entry into force of an agreement necessary to effectuate the purposes of this subsection, the Secretary shall work with relevant national and international communities to establish and implement a process, or may apply an applicable process already established, for approving the use of unmanned aircraft in the designated permanent areas in the Arctic without regard to whether an unmanned aircraft is used as a public aircraft, a civil aircraft, or a model aircraft.

SEC. 333. SPECIAL RULES FOR CERTAIN UNMANNED AIRCRAFT SYSTEMS.

(a) IN GENERAL.—Notwithstanding any other requirement of this subtitle, and not later than 180 days after the date of enactment of this Act, the Secretary of Transportation shall determine if certain unmanned aircraft systems may operate safely in the national airspace system before completion of the plan and rulemaking required by section 332 of this Act or the guidance required by section 334 of this Act.

(b) ASSESSMENT OF UNMANNED AIRCRAFT SYSTEMS.—In making the determination under subsection (a), the Secretary shall determine, at a minimum—

(1) which types of unmanned aircraft systems, if any, as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace system or the public or pose a threat to national security; and
(2) whether a certificate of waiver, certificate of authorization, or airworthiness certification under section 44704 of title 49, United States Code, is required for the operation of unmanned aircraft systems identified under paragraph (1).

(c) REQUIREMENTS FOR SAFE OPERATION.—If the Secretary determines under this section that certain unmanned aircraft systems may operate safely in the national airspace system, the Secretary shall establish requirements for the safe operation of such aircraft systems in the national airspace system.

SEC. 334. PUBLIC UNMANNED AIRCRAFT SYSTEMS.

(a) GUIDANCE.—Not later than 270 days after the date of enactment of this Act, the Secretary of Transportation shall issue guidance regarding the operation of public unmanned aircraft systems to—

(1) expedite the issuance of a certificate of authorization process;
(2) provide for a collaborative process with public agencies to allow for an incremental expansion of access to the national airspace system as technology matures and the necessary safety analysis and data become available, and until standards are completed and technology issues are resolved;
(3) facilitate the capability of public agencies to develop and use test ranges, subject to operating restrictions required by the Federal Aviation Administration, to test and operate unmanned aircraft systems; and
(4) provide guidance on a public entity’s responsibility when operating an unmanned aircraft without a civil airworthiness certificate issued by the Administration.

(b) STANDARDS FOR OPERATION AND CERTIFICATION.—Not later than December 31, 2015, the Administrator shall develop and implement operational and certification requirements for the operation of public unmanned aircraft systems in the national airspace system.
(c) AGREEMENTS WITH GOVERNMENT AGENCIES.—

(1) IN GENERAL.—Not later than 90 days after the date of enactment of this Act, the Secretary shall enter into agreements with appropriate government agencies to simplify the process for issuing certificates of waiver or authorization with respect to applications seeking authorization to operate public unmanned aircraft systems in the national airspace system.
(2) CONTENTS.—The agreements shall—

(A) with respect to an application described in paragraph

(1)—

(i) provide for an expedited review of the application;

(ii) require a decision by the Administrator on approval or disapproval within 60 business days of the date of submission of the application; and
(iii) allow for an expedited appeal if the application is disapproved;

(B) allow for a one-time approval of similar operations carried out during a fixed period of time; and
(C) allow a government public safety agency to operate unmanned aircraft weighing 4.4 pounds or less, if operated—

(i) within the line of sight of the operator;
(ii) less than 400 feet above the ground;
(iii) during daylight conditions;
(iv) within Class G airspace; and
(v) outside of 5 statute miles from any airport, heliport, seaplane base, spaceport, or other location with aviation activities.

SEC. 335. SAFETY STUDIES.

The Administrator of the Federal Aviation Administration shall carry out all safety studies necessary to support the integration of unmanned aircraft systems into the national airspace system.

SEC. 336. SPECIAL RULE FOR MODEL AIRCRAFT.

(a) IN GENERAL.—Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if—

(1) the aircraft is flown strictly for hobby or recreational use;
(2) the aircraft is operated in accordance with a community based set of safety guidelines and within the programming of a nationwide community-based organization;
(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;
(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
(5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).

(b) STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.
(c) MODEL AIRCRAFT DEFINED.—In this section, the term ‘‘model aircraft’’ means an unmanned aircraft that is—

(1) capable of sustained flight in the atmosphere;
(2) flown within visual line of sight of the person operating the aircraft; and
(3) flown for hobby or recreational purposes.

 


Robert Taylor v. FAA- 2nd Drone Registration Class Action Lawsuit

Quick Summary:

drone-registration-lawsuit

This is NOT John Taylor who was instrumental in having the drone registration regulations vacated in the Taylor v. Huerta case. This is Robert Taylor who is John Taylor’s brother.  Just to mention, I’m NOT involved in this case. This is a class action lawsuit (of at least 836,796 members) against the FAA.

Count I is alleging that the FAA collected personal information and money under the Part 48 registration regulations which were declared illegal under the Taylor v. Huerta case. Even after the Taylor v. Huerta ruling, the FAA continued to collect and retain all of the personal information and money. They did not delete the registry or refund the money. “The Privacy Act mandates that agencies that maintain a ‘system of records’ must ‘maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President.'” 5 U.S.C. § 552a(e)(1).” The FAA maintained the personal information of the individuals when the FAA lacked statutory authority, made clear by the Taylor v. Huerta case, and thus violated the Privacy Act. Because the FAA acted intentionally or willfully, each injured party is entitled to $1,000 in statutory damages.

Count II of the lawsuit alleges that under the Little Tucker Act, the Federal Government’s sovereign immunity is waived when the government takes money from individuals in violation of a statute. This is the same thing being alleged in another class action against the FAA, Reichert v. FAA, regarding the FAA illegally taking the $5 during registration. They want everyone’s $5 back.

Count III alleges that the FAA “violated Plaintiff and the Class’s Constitutional and privacy rights by unlawfully promulgating the Registration Rule and enforcing the Registration Rule without any statutory authority to do so. Further, once the D.C. Circuit vacated the Registration Rule, the Defendants did not delete the private and personal information of Model Aircraft owners and did not refund their registration fees. In addition, the Defendants unlawfully continued the registration process and unlawfully maintained Plaintiff and the Class’s private and personal information even after the D.C. Circuit held that the Defendants were prohibited from doing so.” Basically, the constitutional right was the right to judicial review in Article III of the Constitution and the FAA just ignored the D.C. Circuit’s ruling.

Count IV alleges unjust enrichment by collecting over 4 million in fees.

The lawsuit is seeking $5 back for the class ($4,183,980), Privacy Act violation statutory damages of $1,000 EACH for the members of the class ($ 836,796,000).

In sum, we’re looking at almost 841 million PLUS attorneys fees.

Interested in more drone lawsuits? Check out my Drone Lawsuits and Litigation Database.

Brief Background to the Lawsuit:

In 2012, the FAA Modernization and Reform Act of 2012 was passed which provided a Section 336 that protected a certain group of model aircraft from regulation from the FAA.  The FAA in 2015 created the Part 48 registration regulations which governed this protected class of model aircraft. John Taylor filed suit in the D.C. Circuit Court of Appeals. That court ruled that the FAA violated Section 336 and that the Part 48 registration regulations as applied to model aircraft were illegal.

During this period AFTER the registration regulations were declared illegal, the FAA did not delete the database of registered names or refund the money. The FAA instead created a difficult process, using paper and requiring more sensitive data, to facilitate deregistration and refunds. This process was not well publicized until I posted about it. John Taylor then filed another lawsuit in the Federal District Court of Maryland for Robert Taylor seeking injunctive relief based on, among others things, the Privacy Act. The FAA argued that Taylor could not get injunctive relief under the Privacy Act and that Taylor could not seek remedies for others – only himself. John Taylor dismissed the Maryland case and the class action suit was filed in Washington, D.C. by a D.C. law firm.

In December 2017, the National Defense Authorization Act of 2017 was passed which overturned the Taylor v. Huerta ruling putting the registration regulations back into effect.

This lawsuit was filed on January 5, 2018.

 

If you are in need of help with filing Part 107 waivers, please contact me.  I have helped over 70 clients obtain waiver approvals.

 

Actual Text of the Lawsuit:

Robert C. Taylor

vs.

Federal Aviation Administration

and

Michael Huerta

 

CLASS ACTION COMPLAINT
Plaintiff Robert C. Taylor, on behalf of himself and all others similarly situated, by counsel, Carr Maloney P.C., brings this Class Action against Defendants Federal Aviation Administration (“FAA”) and Michael P. Huerta, in his official capacity as Administrator of the FAA, and states as follows:

PARTIES
1. Plaintiff is a natural person and a citizen of the United States, residing in the state of Maryland.
2. Defendant FAA is part of the United States Department of Transportation and is located at 800 Independence Avenue SW, Washington D.C. 20591. Defendant Huerta serves as the Administrator of the FAA.

JURISDICTION AND VENUE
3. This Court has jurisdiction over this matter because it involves federal questions pursuant to 28 U.S.C. § 1331. This is also a civil action arising under the United States Constitution. Furthermore, this Court has subject matter jurisdiction over this action under 28 U.S.C. § 1332. Plaintiff brings this Complaint on behalf of a nationwide class, and at least one Class member is a citizen of a state different from Defendants. The Class consists of at least 836,796 Class members and the matter in controversy exceeds $5,000,000.
4. Venue is proper in this Court under 28 U.S.C. § 1391 because the FAA and Huerta are located in the District of Columbia, and the FAA regularly conducts business in this District. Moreover, a substantial part of the events asserted in this Complaint occurred and continues to occur in this District. Venue is also proper pursuant to 5 U.S.C.A. § 552a(g)(5).

FACTUAL ALLEGATIONS
5. In 2012, Congress passed the FAA Modernization and Reform Act of 2012, 126 Stat. 11. The Act provided that the FAA could not “promulgate any rule or regulation regarding model aircraft” that meet certain criteria described in the Act. Pub. L. 112-95, § 336(a).
6. Section 336(c) of the FAA Modernization and Reform Act of 2012 defines a “Model Aircraft” as an “Unmanned Aircraft” that is “(1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”
7. On December 16, 2015, despite Congress’s explicit prohibition against rulemaking involving Model Aircraft, the FAA promulgated the Registration and Marking Requirements for Small Unmanned Aircraft (the “Registration Rule”). The Registration Rule required that beginning December 21, 2015, owners of Model Aircraft operated for hobby or recreational purposes must register with the FAA. 80 Fed. Reg. 78593.
8. As part of the registration under the Registration Rule, owners of Model Aircraft were required to provide the FAA with personal information including their names, email addresses, and home addresses. They also had to pay a $5.00 registration fee. Model Aircraft Owners who did not register were subject to three years in prison and fines of up to $250,000. 80 Fed. Reg. 78593, 78630.
https://www.gpo.gov/fdsys/pkg/FR-2015-12-16/pdf/2015-31750.pdf
9. In fact, the FAA threatened that failing to register would result in civil penalties up to $27,500 and criminal penalties up to $250,000 and three years in prison. https://web.archive.org/web/20151224033152/www.faa.gov/uas/registration/faqs Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 3 of 16
10. Plaintiff is a Model Aircraft hobbyist who owns multiple Model Aircraft and uses them for hobby or recreational purposes.
11. Following the effective date of the Registration Rule, Plaintiff registered his Model Aircraft with the FAA, provided the required personal information, and paid the $5.00 registration fee.
12. No less than 836,796 owners of Model Aircraft registered their Model Aircraft for hobby or recreational purposes from December 21, 2015 through November 14, 2017. http://dronecenter.bard.edu/drone-registrations.
13. On May 19, 2017, the United States Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”) vacated the Registration Rule “to the extent that it applies to Model Aircraft,” because the Registration Rule was among those actions specifically prohibited by § 336(a). Taylor v. Huerta, 856 F.3d 1089, 1090, 1094 (D.C. Cir. 2017). “The FAA’s 2015 Registration Rule, which applies to model aircraft, directly violates that clear statutory prohibition.” Id. at 1090. Thus, the registrations that were based upon the promulgation of the invalid and vacated Registration Rule, had no lawful existence.
14. Also on May 19, 2017, the FAA issued a press release stating that the FAA will “continue to encourage registration for all drone operators,” despite the D.C. Circuit’s decision vacating the Registration Rule and making clear that the FAA had no authority to promulgate the Registration Rule. https://www.faa.gov/news/press_releases/news_story.cfm?newsId=21674
15. Despite the judicial vacatur of the regulation establishing the FAA’s model aircraft registry, the FAA did not delete Plaintiff’s personal information from the registry or refund his $5.00 registration fee. Nor did the FAA delete the other registered owners of Model Aircrafts’ personal information or return their registration fees. Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 4 of 16
16. Though it did not voluntarily delete the now clearly-unlawful registry, the FAA ultimately did create a form whereby registrants could seek to delete their registrations and receive a refund. However, the FAA did not distribute the form to registrants through their email or physical addresses on file with the FAA, or take other reasonable steps to make registrants aware of the process. Further, the form, without lawful justification, required registrants to make certifications as to how they “always” operate their Model Aircraft, and to provide personal banking information. The form is no longer available on the FAA website.
17. On December 12, 2017, President Donald Trump signed the National Defense Authorization Act. Section 1092(d) of the National Defense Authorization Act states that “The rules adopted by the Administrator of the Federal Aviation Administration in the matter of registration and marking requirements for small unmanned aircraft (FAA-2015-7396; published on December 16, 2015) that were vacated by the United States Court of Appeals for the District of Columbia Circuit in Taylor v. Huerta (No. 15-1495; decided on May 19, 2017) shall be restored to effect on the date of enactment of this Act.” Plaintiff and the Class do not concede that the National Defense Authorization Act is valid. The National Defense Authorization Act, by its terms, is not retroactive. Therefore, any personal information and registration fees collected from owners of Model Aircraft pursuant to the Registration Rule between December 21, 2015 and December 11, 2017, was, and remains, unlawful.
19. The FAA’s actions were willful or intentional. Section 336(a) clearly prohibited the promulgation of the Registration Rule. As the court noted, “[s]tatutory interpretation does not get much simpler.” Taylor, 856 F.3d at 1092. The FAA knew, or should have known, that its actions were unlawful, but proceeded to act in willful and flagrant violation of the rights of hundreds of thousands of Model Aircraft hobbyists. The FAA’s actions were so patently egregious and unlawful that anyone undertaking the conduct should have known it to be unlawful. The FAA’s actions were committed without grounds for believing them to be lawful, and in flagrant disregard of the rights of those whom it unlawfully registered. Nor did the FAA relent when the Registration Rule was challenged in court. Lastly, despite an order of the Court of Appeals vacating the Regulation Rule to the extent that it applied to Model Aircraft, the FAA did not refund their $5.00 registration fees and continued not only to maintain, but to build upon its unlawful registry, knowing it to be illegal. In addition, the FAA’s unlawful, and uncirculated, “deregistration” process further reveals the intentional and willful nature of the FAA’s efforts to maintain its unlawful registry.

CLASS ACTION ALLEGATIONS
20. Plaintiff brings this action individually and on behalf of all others similarly situated individuals pursuant to Rule 23 of the Federal Rules of Civil Procedure. The proposed class is as follows:
All owners of Model Aircraft who registered with the FAA for hobby or recreational purposes from December 21, 2015 through December 11, 2017.
21. The Class is so numerous that joinder of all individual plaintiffs would be impracticable. Plaintiff avers that the class consists of at least 836,796 Class members, the number of individuals who registered Model Aircraft for hobby or recreational purposes as of November 14, 2017. The precise number of Class members is known by the FAA and can be ascertained through its own records.
22. There are questions of law and fact common to the Class that predominate over any questions affecting only individual Class members. All members of the Class have been subject to and affected by the same course of unlawful conduct. In violation of § 336(a) of the FAA Modernization and Reform Act of 2012, the FAA unlawfully registered Class members,
and in doing so, the FAA unlawfully collected and maintained personal information about Class members and unlawfully collected the same registration fees.
23. Plaintiff’s claims are typical of the claims of the Class, in that they arise from the same operative facts and course of conduct, are based on the same legal theories, and based upon the FAA’s violation of § 336(a) of the Modernization and Reform Act of 2012. In violating § 336(a), the FAA unlawfully registered Class members, and in doing so, the FAA unlawfully collected and maintained personal information about Class members and unlawfully collected the Class members’ registration fees.
24. Plaintiff will fairly and adequately represent and protect the interests of the Class. Plaintiff is committed to vigorously litigating this matter. Plaintiff has no interest antagonistic to those of other Class members. Plaintiff has secured counsel experienced in handling class actions. Neither Plaintiff nor his counsel have any interests which might cause them not to vigorously pursue the claims in this lawsuit.25. A class action is superior to other available methods of the fair and efficient adjudication of this controversy under Rule 23(b)(3). The expense and burden of individual litigation would make it impracticable or impossible for Class members to prosecute their claims individually. The interest of Class members in individually controlling the prosecution of separate claims against the FAA is relatively small, and such complex individual litigation against the federal government, who has unlimited resources, would be cost prohibitive if the suits were prosecuted individually. Further, such numerous individual suits (perhaps a number approaching one million or more) would burden the court system. Management of the Class’s claims is likely to present significantly fewer difficulties and is in the best interest of the Class members, judicial economy, and the court system. Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 7 of 16
26. Class certification is also appropriate under Rule 23(b)(2) given that the FAA acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate with respect to the Class as a whole. Despite a clear ruling by the D.C. Circuit Court that the FAA violated § 336(a) of the Modernization and Reform Act of 2012, the FAA continued to collect and did not return registration fees, and did not delete the unlawfully collected personal information.
27. Furthermore, this action should be maintained as a class action because the prosecution of separate actions by individual members of the Class would create a risk of inconsistent or varying adjudications with respect to individual members which would establish incompatible standards of conduct for the parties opposing the Class, as well as a risk of adjudications with respect to individual members which would as a practical matter be dispositive of the interests of other members not parties to the adjudications or substantially impair or impended their ability to protect their interests.

COUNT I: VIOLATION OF THE PRIVACY ACT OF 1974, 5.U.S.C.A. § 552a
28. Plaintiff and the Class incorporate by reference the allegations contained in Paragraphs 1-27 of the Complaint as if fully set forth herein.
29. The Privacy Act mandates that agencies that maintain a “system of records” must “maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President.” 5 U.S.C.A. § 552a(e)(1).
30. Plaintiff and the Class meet the definition of an “individual” within the meaning of 5 U.S.C.A. § 552a(a)(2). Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 8 of 16
31. The FAA is an agency that must comply with 5 U.S.C.A. § 552a(e)(1) in its maintenance of records.
32. The personal information of Plaintiff and the Class collected and maintained by the FAA is a “system of records” within the meaning of 5 U.S.C.A. § 552a(a)(5). Moreover, the Plaintiff and the Class’s personal information was incorporated into a “system of records.”
33. The D.C. Circuit ruled that the FAA lacked statutory authority to promulgate the Registration Rule and thus vacated the Registration Rule. Taylor v. Huerta, 856 F.3d 1089, 1093-94 (D.C. Cir. 2017). As such, the FAA lacked authority to collect registration fees from Plaintiff and the Class and to collect from and maintain their personal information.
34. Thus, the maintenance of a “system of records” for Plaintiff and the Class from December 21, 2015 to December 11, 2017 was not only not relevant or necessary, but it was unlawful. Accordingly, the FAA violated 5 U.S.C.A. § 552a(e)(1) by promulgating the Registration Rule and maintaining a registry of Model Aircraft owners from December 21, 2015 to December 11, 2017 that was not relevant or necessary to accomplish a purpose required to be accomplished by statute or by executive order of the President.
35. Section 552a(g)(1)(D) provides that a civil action can be brought when an agency “fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual.”
36. Plaintiff and the Class can bring and maintain an action for civil remedies against Defendants under 5 U.S.C.A. § 552a(g)(1)(D) for the FAA’s failure to comply with 5 U.S.C.A. § 552a(e)(1).
37. Plaintiff and the Class experienced adverse effects due to the FAA’s violation of 5 U.S.C.A. § 552a(e)(1), including actual damages. The damages suffered by Plaintiff and other Class members included pecuniary harm. The FAA charged Plaintiff and the Class a $5.00 fee to collect and unlawfully maintain information about Plaintiff and other Class members in the FAA’s system of records. In addition, the FAA deprived Plaintiff and other Class members of use of those funds.

38. Plaintiff and the Class do not need to exhaust their administrative remedies before bringing this claim under 5 U.S.C.A. § 552a(g)(1)(D).

39. The FAA acted willfully and intentionally within the meaning of 5 U.S.C.A. § 552a(g)(4) because it knew or should have known that it lacked the statutory authority for promulgating the Registration Rule, but it did so anyway. Further, once the D.C. Circuit vacated the Registration Rule, the FAA did not delete the personal information of Plaintiff and the Class members and did not refund their registration fees. In addition, the FAA continued the registration process even after the D.C. Circuit held that the FAA was prohibited from doing so.
40. Plaintiff and the Class members are each entitled to statutory damages in a sum of no less than $1,000 plus attorneys’ fees and costs. 5 U.S.C.A. § 552a(g)(4).

COUNT II: VIOLATION OF THE LITTLE TUCKER ACT, 28 U.S.C. § 1346
41. Plaintiff and the Class incorporate by reference the allegations contained in Paragraphs 1-40 of the Complaint as if fully set forth herein.
42. The Little Tucker Act waives sovereign immunity for Plaintiff and the Class to bring this cause of action and this lawsuit against the federal government.
43. Plaintiff and the Class do not need to exhaust their administrative remedies before bringing this claim and lawsuit under the Little Tucker Act.
44. Courts routinely recognize illegal exaction claims when the government takes money from individuals in violation of a statute. Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 10 of 16
45. Plaintiff and the Class bring this claim under the Little Tucker Act for the Defendants’ illegal exaction of $5.00 registration fees and personal information from at least 836,7960 owners of Model Aircraft between December 21, 2015 and December 11, 2017, despite the lack of statutory authority to do so given the D.C. Circuit’s decision in Taylor v. Huerta.
46. As set forth above, Plaintiff and the Class have suffered damages and are each entitled to damages of not more than $10,000 each under 28 U.S.C. § 1346(a)(2).

COUNT III: CONSTITUTIONAL VIOLATION
47. Plaintiff and the Class incorporate by reference the allegations contained in Paragraphs 1-46 of the Complaint as if fully set forth herein.
48. Defendants have a duty to Plaintiff and the Class to act in a manner consistent with their constitutional rights and to not deprive them of those rights.
49. Plaintiff and the Class have a right to be free from acts and omissions of Defendants that deprive Plaintiff and the Class of rights protected by the Constitution of the United States, including privacy rights guaranteed by the Constitution.
50. Plaintiff and the Class have a right to the protections afforded to them through the process of judicial review under Article 3 of the Constitution of the United States, which declared the FAA’s Registration Rule unlawful.
51. Plaintiff and the Class have a right not to be subject to the requirements of the Registration Rule from December 21, 2015 to December 11, 2017, which was declared unlawful by a court of competent jurisdiction.
52. Plaintiff and the Class have a right to be free from civil and criminal penalties for their failure to comply with a regulation that has been declared unlawful by a court of competent jurisdiction.
53. The Defendants violated Plaintiff and the Class’s Constitutional and privacy rights by unlawfully promulgating the Registration Rule and enforcing the Registration Rule without any statutory authority to do so. Further, once the D.C. Circuit vacated the Registration Rule, the Defendants did not delete the private and personal information of Model Aircraft owners and did not refund their registration fees. In addition, the Defendants unlawfully continued the registration process and unlawfully maintained Plaintiff and the Class’s private and personal information even after the D.C. Circuit held that the Defendants were prohibited from doing so.
54. Plaintiff and the Class have exhausted any administrative remedies.
55. As a result of the Defendants’ violation of Plaintiff and the Class’s Constitutional and privacy rights, Plaintiff and the Class have suffered damages.

COUNT IV: UNJUST ENRICHMENT
56. Plaintiff and the Class incorporate by reference the allegations contained in Paragraphs 1-55 of the Complaint as if fully set forth herein.
57. Plaintiff and the Class conferred a benefit to the Defendants through providing them their personal information and over $4,183,980 in ill-gotten registration fees.
58. The Defendants knowingly accepted and retained the benefit as they unlawfully maintained a registry of Plaintiff and the Class’s personal information and collected over $4,183,980 in registration fees in violation of the law.
59. Given the D.C. Circuit’s decision which declared that the Registration Rule was unlawful, it would be unjust for the Defendants to retain the personal information of over 836,796 owners of Model Aircraft and over $4,183,980 in registration fees.
60. The Defendants should not be permitted to maintain the personal information and registration fees of Plaintiff and owners of Model Aircraft from December 21, 2015 until December 11, 2017 because the Defendants unlawfully and unjustly received them as a result of its unlawful actions described herein.
61. As set forth above, the Defendants have waived sovereign immunity for this lawsuit.
62. Notwithstanding statutory damages for other claims, Plaintiff and the Class also seek restitution in an additional amount of no less than $4,183,980 for the Defendants’ unjust enrichment, as well as interest and attorneys’ fees and costs.

COUNT V: DECLARATORY RELIEF
63. Plaintiff and the Class incorporate by reference the allegations contained in Paragraphs 1-62 of the Complaint as if fully set forth herein.
64. There exists an actual controversy between Plaintiff and the Class, and the Defendants.
65. Pursuant to 28 U.S.C. § 2201, this Court may declare the rights and other legal relations of any interested parties seeking a declaration. Any such declaration shall have the force and effect of a final judgment.
66. The Registration Rule from December 21, 2015 to December 11, 2017 was unlawful. Therefore, the no less than 836,796 registrations of owners of Model Aircraft for
hobby or recreational purposes during the period of December 21, 2015 to December 11, 2017 were unlawful.
67. Thus, the collection and maintenance of personal information about Plaintiff and Class members and the collection of their registration fees from December 21, 2015 to December 11, 2017 was unlawful.
68. The Defendants violated Plaintiff and the Class’s Constitutional and privacy rights by unlawfully promulgating the Registration Rule and enforcing the Registration Rule from December 21, 2015 to December 11, 2017.
69. The FAA violated the Privacy Act, 5 U.S.C.A. §552a(e)(1) by maintaining a registry of owners of Model Aircraft from December 21, 2015 to December 11, 2017 that was not relevant or necessary to accomplish a purpose required to be accomplished by statute or by executive order of the President. Further, it was unlawful. As such, Plaintiff and the Class are each entitled to statutory damages from the FAA in a sum of no less than $1,000 plus attorneys’ fees and costs. Moreover, Plaintiff and the Class are also entitled to restitution damages from the Defendants in the amount of no less than $4,183,980 for the FAA’s unjust enrichment of registration fees.

JURY DEMAND

Plaintiff and the Class request a trial by jury on all issues so triable.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff and the Class pray for an Order as follows:
A. Finding that this action satisfies the prerequisites for maintenance as a class action and certifying the Class defined herein; Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 14 of 16
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B. Designating Plaintiff as the representative of the Class and undersigned counsel as Class Counsel;
C. Declaring that the Registration Rule from December 21, 2015 to December 11, 2017 was unlawful;
D. Declaring that there were no less than 836,796 registrations of owners of Model Aircraft for hobby or recreational purposes during the period of December 21, 2015 to December 11, 2017, which were unlawful;
E. Declaring that the collection and maintenance of personal information about Plaintiff and Class members and the collection of their registration fees from December 21, 2015 to December 11, 2017 was unlawful;
F. Declaring that the Defendants violated Plaintiff and the Class’s Constitutional and privacy rights by unlawfully promulgating the Registration Rule and enforcing the Registration Rule from December 21, 2015 to December 11, 2017;
G. Declaring that the FAA violated §552a(e)(1) of the Privacy Act and that Plaintiff and the Class are each entitled to an award of no less than $1,000 plus attorneys’ fees and costs;
H. Declaring that the Defendants violated the Little Tucker Act and that Plaintiff and the Class are each entitled to an award of up to $10,000;
I. Declaring that Plaintiff and the Class are also entitled to restitution damages from the Defendants in the amount of no less than $4,183,980 for the Defendants’ unjust enrichment of registration fees;
J. Ordering the deletion of records collected and maintained by the Defendants regarding Plaintiff and the Class collected between December 21, 2015 and December 11, 2017;
K. Entering judgment in favor of Plaintiff and the Class against Defendants; Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 15 of 16
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L. Awarding Plaintiff and the Class a sum of no less than $836,796,000 for violations of the Privacy Act and the Little Tucker Act, and a sum of no less than $4,183,980 for the ill-gotten registration fees;
M. Awarding Plaintiff and the Class attorneys’ fees and costs, including interest, as allowed or required by law;
N. Granting all further and other relief as the Court deems just and appropriate.

ROBERT C. TAYLOR


Section 107.79 Voluntary surrender of certificate. (2018)

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Section 107.79 Voluntary surrender of certificate.

(a) The holder of a certificate issued under this subpart may voluntarily surrender it for cancellation.

(b) Any request made under paragraph (a) of this section must include the following signed statement or its equivalent: “I voluntarily surrender my remote pilot certificate with a small UAS rating for cancellation. This request is made for my own reasons, with full knowledge that my certificate will not be reissued to me unless I again complete the requirements specified in §§107.61 and 107.63.”

My Commentary on Section 107.79 Voluntary surrender of certificate.

This comes in handy for a defense attorney who wants to negotiate with a prosecutor for a better deal.

Advisory Circular 107-2 on Section 107.79 Voluntary surrender of certificate.

None

 

FAA’s Discussion on Section 107.79 Voluntary surrender of certificate.from the Final Small Unmanned Aircraft Rule

Section 107.79 will allow the holder of a remote pilot certificate with a small UASrating to voluntarily surrender it to the FAA for cancellation. However, the FAA emphasizes that cancelling the certificate pursuant to § 107.79 will mean that the certificate no longer exists, and the individual who surrendered the certificate will need to again go through the entire certification process if he or she subsequently changes his or her mind. For individuals who are not part 61 pilot certificate holders, this includes passing the initial aeronautical knowledge test. Accordingly, § 107.79(b) will require the individual surrendering the certificate to include the following signed statement (or an equivalent) in his or her cancellation request:

I voluntarily surrender my remote pilot certificate with a small UAS rating for cancellation. This request is made for my own reasons with full knowledge that my certificate will not be reissued to me unless I again complete the requirements specified in § 107.61 and § 107.63.

The FAA did not receive any adverse comments on this provision when it was proposed in the NPRM.

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Section 107.77 Change of name or address. (2018)

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Section 107.77 Change of name or address.

(a) Change of name. An application to change the name on a certificate issued under this subpart must be accompanied by the applicant’s:

(1) Remote pilot certificate with small UAS rating; and

(2) A copy of the marriage license, court order, or other document verifying the name change.

(b) The documents in paragraph (a) of this section will be returned to the applicant after inspection.

(c) Change of address. The holder of a remote pilot certificate with small UAS rating issued under this subpart who has made a change in permanent mailing address may not, after 30 days from that date, exercise the privileges of the certificate unless the holder has notified the FAA of the change in address using one of the following methods:

(1) By letter to the FAA Airman Certification Branch, P.O. Box 25082, Oklahoma City, OK 73125 providing the new permanent mailing address, or if the permanent mailing address includes a post office box number, then the holder’s current residential address; or

(2) By using the FAA Web site portal at www.faa.gov providing the new permanent mailing address, or if the permanent mailing address includes a post office box number, then the holder’s current residential address.

My Commentary on Section 107.77 Change of name or address.

It’s important that you give the FAA your correct address because if they need to mail you something, like a certificate revocation, they fine you if you don’t turn over your certificate timely.

Advisory Circular 107-2 on Section 107.77 Change of name or address.

None

 

FAA’s Discussion on Section 107.77 Change of name or address from the Final Small Unmanned Aircraft Rule

This rule will extend the existing change-of-mailing-address requirement of part 61 to holders of a remote pilot certificate with a small UAS rating. Specifically § 107.77(c) will require a certificate holder who has made a change in permanent mailing address to notify the FAA within 30 days of making the address change. Failure to do so will prohibit the certificate holder from exercising the privileges of the airman certificate until he or she has notified the FAA of the changed address. This regulatory provision will help ensure that the FAA is able to contact airman certificate holders. The FAA did not receive any adverse comments on this provision when it was proposed in the NPRM.

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Section 107.74 Initial and recurrent training courses. (2018)

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Section 107.74 Initial and recurrent training courses.

(a) An initial training course covers the following areas of knowledge:

(1) Applicable regulations relating to small unmanned aircraft system rating privileges, limitations, and flight operation;

(2) Effects of weather on small unmanned aircraft performance;

(3) Small unmanned aircraft loading;

(4) Emergency procedures;

(5) Crew resource management;

(6) Determining the performance of small unmanned aircraft; and

(7) Maintenance and preflight inspection procedures.

(b) A recurrent training course covers the following areas of knowledge:

(1) Applicable regulations relating to small unmanned aircraft system rating privileges, limitations, and flight operation;

(2) Emergency procedures;

(3) Crew resource management; and

(4) Maintenance and preflight inspection procedures.

My Commentary on Section 107.74 Initial and recurrent training courses.

Aeronautical Knowledge Tests (Initial and Recurrent). It is important to have and retain the knowledge necessary to operate a small UA in the NAS. This aeronautical knowledge can be obtained through self-study, taking an online training course, taking an in-person training course, or any combination thereof. The FAA has published the Small Unmanned Aircraft Systems Airman Certification Standard (https://www.faa.gov/training_testing/testing/acs/) that provides the necessary reference material. Note: The below information regarding initial and recurrent knowledge tests apply to persons who do not hold a current part 61 airman certificate. 6.6.1 Initial Test. As described in paragraph 6.4, a person applying for remote pilot certificate with an sUAS rating must pass an initial aeronautical knowledge test given by an FAA-approved KTC. The initial knowledge test will cover the aeronautical knowledge areas listed below: 1. Applicable regulations relating to sUAS rating privileges, limitations, and flight operation; 2. Airspace classification and operating requirements, and flight restrictions affecting small UA operation; 3. Aviation weather sources and effects of weather on small UA performance; 4. Small UA loading and performance; 5. Emergency procedures; 6. Crew Resource Management (CRM); 7. Radio communication procedures; 8. Determining the performance of small UA; 9. Physiological effects of drugs and alcohol; 10. Aeronautical decision-making (ADM) and judgment; 11. Airport operations; and 12. Maintenance and preflight inspection procedures. 6.6.1.1 A part 61 certificate holder who has completed a flight review within the previous 24 calendar-months may complete an initial online training course instead of taking the knowledge test (see paragraph 6.7). 6/21/16 AC 107-2 6-5 6.6.1.2 Additional information on some of the knowledge areas listed above can be found in Appendix B. 6.6.2 Recurrent Test. After a person receives a remote pilot certificate with an sUAS rating, that person must retain and periodically update the required aeronautical knowledge to continue to operate a small UA in the NAS. To continue exercising the privileges of a remote pilot certificate, the certificate holder must pass a recurrent aeronautical knowledge test within 24 calendar-months of passing either an initial or recurrent aeronautical knowledge test. A part 61 pilot certificate holder who has completed a flight review within the previous 24 calendar-months may complete a recurrent online training course instead of taking the knowledge test.

Advisory Circular 107-2 on Section 107.74 Initial and recurrent training courses.

Aeronautical Knowledge Training Course (Initial and Recurrent). This section is applicable only to persons who hold a part 61 airman certificate, other than a student pilot certificate, and have a current flight review.

6.7.1 Initial Training Course. As described in paragraph 6.4, a pilot applying for a remote pilot certificate may complete an initial training course instead of the knowledge test. The training course can be taken online at www.faasafety.gov. The initial training course will cover the aeronautical knowledge areas listed below:

1. Applicable regulations relating to sUAS rating privileges, limitations, and flight operation;
2. Effects of weather on small UA performance;
3. Small UA loading and performance;
4. Emergency procedures;
5. CRM;
6. Determining the performance of small UA; and
7. Maintenance and preflight inspection procedures.

Note: Additional information on some of the knowledge areas listed above can be found in Appendix B.

6.7.2 Recurrent Training Course. After a pilot receives a remote pilot certificate with an sUAS rating, that person must retain and periodically update the required aeronautical knowledge to continue to operate a small UA in the NAS. As a renewal process, the remote pilot must complete either a recurrent training course or a recurrent knowledge test within 24 calendar-months of passing either an initial or recurrent aeronautical knowledge test. Figure 6-2, Recurrent Training Course Cycle Examples, illustrates an individual’s possible renewal cycles.

6.7.2.1 The recurrent training course areas are as follows:
1. Applicable regulations relating to sUAS rating privileges, limitations, and flight operation;
2. Emergency procedures;
3. CRM; and
4. Maintenance and preflight inspection procedures.

FAA’s Discussion on Section 107.74 Initial and recurrent training courses from the Final Small Unmanned Aircraft Rule

For the reasons discussed below, this rule will allow part 61 pilot certificate holders (other than the holders of a student pilot certificate) with current flight reviews139 to substitute an online training course for the aeronautical knowledge testing required by this rule.

Airborne Law Enforcement Association and Texas A&M University-Corpus Christi, suggested requiring only the recurrent knowledge test for part-61-certificated pilots. Numerous commenters also suggested that holders of part 61 airman certificates should be required to take only the recurrent knowledge test, not the initial knowledge test, or should be exempted entirely from knowledge-testing requirements. One commenter suggested that the holders of private, commercial, and ATP certificates who have operated UAS under exemptions be exempted from the initial knowledge test requirement. Another commented that non-military COA pilots should be permitted to take just the recurrent test, since the applicants will usually hold at least a private pilot certificate. One commenter stated that those applicants who hold part 61 pilot certificates should be required only to complete UAS-specific modules as part of the existing FAA Wings program. Another commenter stated that there should be a provision to enable existing small UAS pilots with a certain amount of logged PIC time to fly a small UAS without having to take a knowledge test.

The FAA agrees with commenters who suggested that requiring part-61-certificated pilots who satisfy the flight-review requirements of § 61.56 to take an initial or recurrent knowledge test is unduly burdensome. Through initial certification and subsequent flight reviews, a part-61-certificated airman is required to demonstrate knowledge of many of the topic areas tested on the UAS knowledge test. These areas include: airspace classification and operating requirements, aviation weather sources, radio communication procedures, physiological effects of drugs and alcohol, aeronautical decision-making and judgment, and airport operations. Because a part 61 pilot certificate holder is evaluated on these areas of knowledge in the course of the part 61 certification and flight review process, reevaluating these areas of knowledge on the initial and recurrent knowledge tests conducted under part 107 would be needlessly duplicative.

However, there are UAS-specific areas of knowledge (discussed in section III.F.2.j of this preamble) that a part-61-certificated pilot may not be familiar with. Accordingly, instead of requiring part-61-certificated pilots who are current on their flight reviews to take the initial and recurrent knowledge tests, this rule will provide those pilots with the option to take an online training course focusing on UAS-specific areas of knowledge. Just as there is an initial and recurrent knowledge test, there will also be an initial and recurrent training course available to part 61 pilot certificate holders. Those certificate holders will be able to substitute the initial training course for the initial knowledge test and the recurrent training course for the recurrent knowledge test. To ensure that a certificate holder’s UAS-specific knowledge does not become stale, this rule will include the requirement that a part 61 pilot certificate holder must pass either the recurrent training course or the recurrent knowledge test every 24 months.

The FAA emphasizes that the online training course option in lieu of taking the knowledge test will be available only to those part 61 pilot certificate holders who satisfy the flight review required by § 61.56. This is to ensure that the certificate holder’s knowledge of general aeronautical concepts that are not included on the training course does not become stale. Part 61 pilot certificate holders who do not meet the flight review requirements of § 61.56 will be unable to substitute the online training course for the required aeronautical knowledge test. Thus, under § 107.63(a)(2), a part 61 pilot certificate holder seeking to substitute completion of the initial training course for the initial aeronautical knowledge test will have to present his or her logbook upon application for a remote pilot certificate with a small UAS rating to demonstrate that he or she has satisfied this requirement. The applicant will also have to present a certificate of completion showing that he or she has completed the initial online training course.

The FAA also notes that the above discussion does not apply to holders of a part 61 student pilot certificate. A person is not required to pass an aeronautical knowledge test, pass a practical (skills) test, or otherwise demonstrate aeronautical knowledge in order to obtain a student pilot certificate. Further, student pilot certificate holders who have received an endorsement for solo flight under § 61.87(b) are only required to demonstrate limited knowledge associated with conducting a specific solo flight. For these reasons, the option to take an online training course instead of an aeronautical knowledge test will not extend to student pilot certificate holders.

j. Areas of Knowledge on the Aeronautical Knowledge Tests and Training Courses for Part  61 Pilot Certificate Holders
The NPRM proposed that the initial aeronautical knowledge test would test the following areas of knowledge: (1) regulations applicable to small UAS operations; (2) airspace classification and operating requirements, obstacle clearance requirements, and flight restrictions affecting small unmanned aircraft operation; (3) official sources of weather and effects of weather on small unmanned aircraft performance; (4) small UAS loading and performance; (5) emergency procedures; (6) crew resource management; (7) radio communication procedures; (8) determining the performance of small unmanned aircraft; (9) physiological effects of drugs and alcohol; (10) aeronautical decision-making and judgment; and (11) airport operations. The NPRM also proposed the following areas of knowledge for the recurrent knowledge test: (1) regulations applicable to small UAS operations; (2) airspace classification and operating requirements, obstacle clearance requirements, and flight restrictions affecting small unmanned aircraft operation; (3) official sources of weather; (4) emergency procedures; (5) crew resource management; (6) aeronautical decision-making and judgment; and (7) airport operations.

For the reasons discussed below, this rule will remove obstacle clearance requirements and add maintenance and inspection procedures as areas of knowledge that will be tested on both the initial and recurrent aeronautical knowledge tests. Further, aviation weather sources will be removed from the recurrent aeronautical knowledge tests. Except for these changes, this rule will finalize all other areas of knowledge as proposed in the NPRM.

With regard to the initial and recurrent training courses for part 61 pilot certificate holders, those courses will only cover UAS-specific areas of knowledge that are not included in the training and testing required for a part 61 pilot certificate. Thus, the initial training course will cover: (1) regulations applicable to small UAS operations; (2) small UAS loading and performance; (3) emergency procedures; (4) crew resource management; (5) determining the performance of the small unmanned aircraft; and (6) maintenance and inspection procedures. The recurrent training course will cover: (1) regulations applicable to small UAS operations; (2) emergency procedures; (3) crew resource management; and (4) maintenance and inspection procedures.

i. Regulations Applicable to Small UAS
The NPRM proposed to include an area of knowledge on both the initial and recurrent knowledge tests that determines whether the test taker knows the regulations applicable to small UAS. By testing the applicant for an airman certificate on knowledge of applicable regulations, the initial and recurrent knowledge tests would ensure that the applicant understands what those regulations require and does not violate them due to ignorance.

The FAA did not receive any adverse comments on this aspect of its proposal, and as such, this rule will include regulations applicable to small UAS as an area of knowledge that is tested on both initial and recurrent aeronautical knowledge tests. This area of knowledge will also be included on the initial and recurrent training courses that can be taken by part 61 pilot certificate holders instead of a knowledge test because regulations applicable to a small UAS are a UAS-specific area of knowledge that is not included in the training and testing required for a part 61 pilot certificate.

ii. Airspace Classifications and Operating Requirements, and Flight
Restrictions Affecting Small Unmanned Aircraft Operation The NPRM also proposed testing (on both the initial and recurrent knowledge tests) knowledge of airspace classification and operating requirements, as well as knowledge of flight restrictions affecting small unmanned aircraft operation. The NPRM explained that part 107 would include airspace operating requirements, such as the requirement to obtain ATC permission prior to operating in controlled airspace, and in order to comply with those requirements, an airman would need to know how to determine the classification of the airspace in which he or she would like to operate. The NPRM also proposed to test knowledge of how to determine which areas of airspace are prohibited, restricted, or subject to a TFR.

Under the NPRM, this area of knowledge would also be included in the recurrent knowledge test because: (1) airspace that the airman is familiar with could become reclassified over time; (2) the location of existing flight restrictions could change over time; and (3) some airmen may not regularly encounter these issues in their operations. For the reasons discussed below, this rule will include knowledge of airspace classification and operating requirements and knowledge of flight restrictions affecting small unmanned aircraft operation as an area of knowledge tested on both the initial and recurrent knowledge tests.

The California Agricultural Aircraft Association supported testing on how the airspace is managed, what the rules and regulations are, and how manned aircraft operate in the airspace. Aerius suggested that the knowledge test should include special use airspace, right-of-way rules, visual scanning, aeromedical factors (e.g., the limitations of the human eye), and accident reporting. On the other hand, the Electronic Frontier Foundation asserted that airspace classification is not relevant for low altitude micro UAS flights far away from airports and should not be tested for airmen seeking to operate micro UAS. The FAA declines to eliminate airspace classification as an area of knowledge tested for small UAS operations. As an initial matter, the FAA notes that this rule will not prohibit any small UAS (including micro UAS) from operating near airports. For UAS not operating near an airport, the FAA notes that controlled airspace can extend a significant distance away from an airport. For example, the surface area of Class B airspace can extend up to 8 nautical miles away from an airport. Additionally, airspace classification may change over time; uncontrolled (Class G) airspace may be changed to controlled airspace and vice versa. A remote pilot of any small UAS will need to have the ability to determine what class of airspace his or her small UAS operation will take place in to ensure that the operation complies with the airspace rules of part 107.

In response to Aerius, the FAA notes that special-use airspace will be covered under knowledge of flight restrictions, which will determine the test taker’s knowledge of regulatory restrictions on small UAS flight imposed through means such as prohibited airspace or a TFR. Right-of-way rules, visual scanning, and accident reporting will be covered by the knowledge area of regulations applicable to small UAS operations because all of these concepts are codified in the operational regulations of part 107. Aeromedical factors will not specifically be included on the knowledge test, but the FAA may publish further guidance to remote pilots on topics such as aeromedical factors and visual scanning techniques.

AUVSI recommended that the FAA require more extensive knowledge testing than what was proposed for an operator desiring to fly in Class B, C, D, or E airspace, operate small UAS for commercial purposes, or operate small UAS beyond visual line of sight with risk-based approval. The commenter did not, however, specify what should be included in this more extensive testing, and as such, the FAA is unable to evaluate AUVSI’s suggestion.

iii. Obstacle Clearance Requirements
The NPRM proposed to include obstacle clearance requirements as an area of knowledge to be tested on the initial knowledge test to ensure that an applicant for a remote pilot certificate knows how to avoid creating a collision hazard with a ground structure. One commenter suggested removing this area of knowledge from the knowledge test because, according to the commenter, there are no obstacle clearance requirements in part 107, and therefore, there should be nothing to test. The FAA agrees with this comment and has removed obstacle clearance requirements as an area of knowledge to be tested on the initial knowledge test.

The FAA notes that although the test taker will not be tested on knowledge of obstacle clearance requirements, they will be tested for knowledge of regulations applicable to small UAS, including the requirements of §§ 107.19(c) and 107.23(a), which: (1) prohibit operating a small unmanned aircraft in a careless or reckless manner so as to endanger the life or property of another; and (2) require the remote pilot in command to ensure that the small unmanned aircraft will pose no undue hazard to other aircraft, people, or property in the event of loss of control of the aircraft. A small unmanned aircraft flown in a manner that creates a collision hazard with a ground structure may violate one or both of these regulations, especially if there are people near the ground structure who may be hurt as a result of the collision.

iv. Aviation Weather Sources and Effects of Weather on Small Unmanned

Aircraft Performance The NPRM proposed to test, on the initial and recurrent knowledge test, knowledge of official sources of weather. The NPRM also proposed to test on the initial knowledge test whether the applicant understands the effects of weather and micrometeorology (weather on a localized and small scale) on a small unmanned aircraft operation. The NPRM explained that knowledge of weather is necessary for the safe operation of a small unmanned aircraft because, due to the light weight of the small unmanned aircraft, weather could have a significant impact on the flight of the aircraft.

One commenter recommended the removal of “official” from “official weather sources,” saying that operation of a UAS calls for assessment of “local” weather conditions, and, furthermore, that there are no clearly identified “official sources of weather.” Aviation Management suggested that official sources of weather be excluded from the recurrent knowledge test.

The FAA agrees with the commenter that there are no specific “official sources of weather,” and has removed that terminology from this rule. However, the FAA emphasizes that there are several sources of aviation weather useful to remote pilots. Accordingly, remote pilots will be required to be familiar with aviation weather products such as the ones provided by the National Weather Service through Flight Service Stations, Direct User Access Terminal Systems (DUATS), and/or Flight Information Services-Broadcast (FIS-B).140 While this rule does not require the use of those sources of weather for planning flights, aviation weather sources could be a valuable resource for remote pilots that choose to use them. For example, a remote pilot conducting an operation in an area with quickly changing weather may wish to access weather information from an aviation weather source for the most up-to-date weather data to ensure that the small UAS operation will comply with the minimum visibility and cloud clearance requirements of § 107.51. The FAA notes that aviation weather sources include weather data that can be used to evaluate local weather conditions.141 Because there is no requirement for remote pilots to use aviation weather products on an ongoing basis, the FAA has removed this area of knowledge from the recurrent aeronautical knowledge test.

Accordingly, this rule will include knowledge of aviation weather sources and the effects of weather on small unmanned aircraft performance on the initial knowledge test. Additionally, this rule will include knowledge of the effects of weather on small unmanned aircraft performance as an area of knowledge on the initial training course available to part 61 pilot certificate holders because this is a UAS-specific area of knowledge that is not included in the training and testing required for a part 61 pilot certificate. The training course will not include knowledge of aviation weather sources because that is not a UASspecific area of knowledge.

v. Small UAS Loading and Performance
The NPRM proposed to include weight and balance as an area of knowledge to be tested on the initial knowledge test to ensure that an applicant for a remote pilot certificate knows how to calculate the weight and balance of a small unmanned aircraft to determine impacts on performance. The NPRM noted that in order to operate safely, operators need an understanding of some fundamental aircraft performance issues, including load balancing and weight distribution as well as available power for the operation. University of Arkansas Division of Agriculture suggested that the FAA’s proposal suggests a lack of understanding by the FAA of these lightweight aircraft. The commenter added that when they place a battery or camera on their aircraft, it is immediately obvious if something is not balanced.

While the FAA agrees that in some circumstances the effect certain loads may have on the weight, balance, and performance of the aircraft may be obvious—such as adding a five pound weight to one side of a 0.5 pound small unmanned aircraft—other weight distributions and how they affect the balance of the aircraft may be more difficult to surmise. For example, it may not be intuitive for a remote pilot to determine the effect a half-pound battery will have when added to a forty-pound aircraft. Additionally, a remote pilot needs to understand the effect that the added weight will have on the aircraft’s operation over time. For example, while a small unmanned aircraft may be balanced for the first few flights after a weight is added, that weight may influence the aircraft over time
such that during later flights the aircraft is no longer balanced and no longer flying safely. For these reasons, the FAA will include a section on the initial knowledge test ensuring that a remote pilot applicant understands how to calculate the weight and balance of a small unmanned aircraft and the resulting impacts on performance. Because small unmanned aircraft loading is a UAS-specific area of knowledge, the FAA will also include it on the initial training course that part 61 pilot certificate holders can take in place of the knowledge test.

vi. Emergency Procedures
The NPRM noted that a small UAS airman may have to deal with an emergency situation during a small UAS operation. As such, the NPRM proposed to include an area of knowledge on the initial knowledge test that would determine whether the applicant knows how to properly respond to an emergency. The NPRM also proposed to include knowledge of emergency procedures on the recurrent knowledge test because emergency situations will likely be infrequent and as such, a certificate holder’s knowledge of emergency procedures may become stale over time. The FAA did not receive adverse comments on including emergency procedures on the initial knowledge test, and as such, this area of knowledge will be included on the initial knowledge test.

Turning to the recurrent knowledge test, Aviation Management recommended that the FAA remove emergency procedures as an area of knowledge covered on that test. The FAA declines to remove emergency procedures from the recurrent knowledge test. As discussed in the NPRM, emergency situations will likely arise infrequently, and as such, a remote pilot’s knowledge of emergency procedures may become stale over time. Accordingly, including this area of knowledge on the recurrent knowledge test will ensure that the remote pilot retains the knowledge of how to properly respond to an emergency. Because this area of knowledge is UAS-specific, it will also be included on the initial and recurrent training courses that can be taken by part 61 pilot certificate holders instead of an initial or recurrent knowledge test.

vii. Crew Resource Management
The NPRM proposed to include crew resource management as an area of knowledge to be tested on the initial and recurrent knowledge tests to ensure that an applicant for a remote pilot certificate knows how to function in a team environment, such as when visual observers are used to assist a remote pilot. In those circumstances, the remote pilot would be in charge of those observers and therefore need an understanding of crew resource management.

Several commenters, including the Small UAV Coalition, Princeton University, and the Electronic Frontier Foundation, argued that crew resource management may not be relevant for all small UAS operations and, as such, should be removed from the knowledge test. Princeton University added that crew resource management would be an irrelevant area of knowledge for student operators who will be operating the aircraft at a low altitude, for a limited distance, on university property, and under the direct supervision of a faculty member. Electronic Frontier Foundation stated that this area of knowledge is irrelevant for micro UAS operations.

One commenter suggested removal of crew resource management stating it is “overkill” and is really just referring to possible communications between the pilot and the visual observer. If kept, the commenter suggested modifying it to “Crew resource management as it may pertain to operation of a small unmanned aircraft system.” The FAA acknowledges that not all small UAS operations will utilize a visual observer or more than one manipulator of the controls of the small unmanned aircraft. However, the FAA anticipates that many remote pilots operating under part 107 will likely use a visual observer or oversee other individuals that may manipulate the controls of the small unmanned aircraft. In order to allow flexibility for certificated remote pilots to determine whether or not to use a visual observer or oversee other individuals manipulating the controls of the small unmanned aircraft, the FAA must ensure that an applicant for a remote pilot certificate is able to function in a team environment and maximize team performance. This includes situational awareness, proper allocation of tasks to individuals, avoidance of work overloads in self and in others, and effectively communicating with other members of the crew such as visual observers and individuals manipulating the controls of a small UAS.

The scenario Princeton University provided in its comment is precisely the type of scenario that would require a certificated remote pilot in command to have an understanding of crew resource management. The remote pilot in command in Princeton University’s scenario would be supervising a student who is manipulating the controls of the small unmanned aircraft. Therefore, the remote pilot in command in that scenario would need to know how to effectively communicate and guide his or her crew (the student). In response to Electronic Frontier Foundation, the FAA notes that even remote pilots operating smaller UAS may choose to use a visual observer or supervise other manipulators of the controls.

It is not necessary to change the title of this area of knowledge because crew resource management correctly captures what this area of knowledge will cover. The FAA also notes that this rule will include crew resource management as an area of knowledge on the initial and recurrent training courses available to part 61 pilot certificate holders because this is a UAS-specific area of knowledge.

viii. Determining the Performance of the Small Unmanned Aircraft
The NPRM proposed to include an area of knowledge on the initial aeronautical knowledge test to ensure that an applicant knows how to determine the performance of the small unmanned aircraft. Aviation Management suggested that this area of knowledge be excluded from the initial knowledge test because, the commenter argued, this knowledge is unnecessary for all small UAS operations.

The FAA will retain determining the performance of the small unmanned aircraft as an area of knowledge on the initial knowledge test. As discussed in section III.E.6.a.i of this preamble, the remote pilot in command will be required to conduct a preflight assessment of the area of operation and ensure that the small unmanned aircraft will pose no undue hazard to other aircraft, people, or property if there is a loss of positive control. In order to be able to do that, the remote pilot in command will need to be able to assess how a small unmanned aircraft will perform in a given operating environment. This area of knowledge will determine whether an applicant for a remote pilot certificate has acquired the knowledge necessary to conduct this assessment.

This rule will also include this area of knowledge on the initial training course that can be taken by part 61 pilot certificate holders instead of an initial knowledge test because it is a UAS-specific area of knowledge.

ix. Physiological Effects Of Drugs and Alcohol
The NPRM proposed to include the physiological effects of drugs and alcohol as an area of knowledge covered by the initial knowledge test. The Electronic Frontier Foundation argued that knowledge of the effects of drugs and alcohol is irrelevant for micro UAS operations and should not be tested for pilots of a micro UAS. The FAA disagrees. As explained in the NPRM, there are many prescription and over-the-counter medications that can significantly reduce an individual’s cognitive ability to process and react to events that are happening around him or her. This can lead to impaired decision-making, which could adversely affect the safety of any small UAS operation. Accordingly, the initial aeronautical knowledge test will include an area of knowledge to determine whether the applicant understands how drugs and alcohol can impact his or her ability to safely operate a small UAS.

x. Aeronautical Decision-Making and Judgment
The NPRM proposed to include aeronautical decision-making and judgment as an area of knowledge tested on the initial and recurrent knowledge tests. Aviation Management suggested that this area of knowledge be excluded from the knowledge tests because this knowledge is unnecessary for all small UAS operations.

The FAA disagrees. As discussed in the NPRM, even though small unmanned aircraft will be limited to a relatively low altitude by the provisions of this rule, they will still share the airspace with some manned-aircraft operations. To safely share the airspace, a remote pilot in command will need to understand the aeronautical decision-making and judgment that manned aircraft pilots engage in so that he or she can anticipate how a manned aircraft will react to the small unmanned aircraft. Accordingly, this rule will retain aeronautical decision-making and judgment as an area of knowledge covered on the initial and recurrent knowledge tests.

xi. Airport Operations
Noting that some small UAS operations could be conducted near an airport, the NPRM proposed to include airport operations as an area of knowledge tested on the initial and recurrent knowledge tests.

Several commenters, including the Small UAV Coalition, Princeton University, and Predessa, argued that airport operations may not be relevant to all small UAS operations, and as such, should be removed from the knowledge tests. The Electronic Frontier Foundation argued that this area of knowledge is “clearly irrelevant” for micro UAS flights conducted far away from airports.

There are over 5,000 public use airports in the United States. As such, the FAA expects that a number of small UAS operations may take place near an airport. The FAA also expects that there could be instances where a small unmanned aircraft unexpectedly ends up flying near an airport due to adverse conditions, such as unexpectedly strong winds that carry the aircraft toward the airport. In those instances, the remote pilot in command will need to have an understanding of airport operations so that he or she knows what actions to take to ensure that the small unmanned aircraft does not interfere with airport operations or traffic patterns. Accordingly, this rule will retain airport operations as an area of knowledge tested on the initial and recurrent knowledge tests.

xii. Radio Communication Procedures
Finally, the NPRM proposed to include radio communication procedures as an area of knowledge covered on the initial aeronautical knowledge test.

Several commenters, including Princeton University, Predesa, and Aviation Management, argued that radio communications may not be relevant for all small UAS operations and as such, should be removed from the knowledge test. Predesa suggested that the FAA design a new “Class G-only unmanned aircraft operator certificate with a small UAS rating” that, among other things, does not include radio communication procedures as an area of knowledge that is tested on the knowledge test. One commenter recommended removal of “radio communication procedures” because there is no requirement for radio communications of any sort with small UAS operations.

As discussed earlier, the FAA expects that a number of small UAS operations will take place near an airport. That is why § 107.43 prohibits a small unmanned aircraft from interfering with airport operations or traffic patterns. Understanding radio communication procedures will assist a remote pilot in command operating near a Class G airport in complying with this requirement. Understanding radio communication procedures will assist a remote pilot in command operating near a Class G airport in complying with this requirement if that pilot chooses to use a radio to aid in his or her situational awareness of manned aircraft operating nearby. As described in section 4-1-9 of the Aeronautical Information Manual, manned-aircraft pilots may broadcast their position or intended flight activity or ground operation on the designated Common Traffic Advisory Frequency (CTAF). This procedure is used primarily at airports that do not have an airport traffic control tower, or have a control tower that is not in operation. Pilots of radio-equipped aircraft use standard phraseology to announce their identification, location, altitude, and intended course of action. Self-announcing for arriving aircraft generally begins within 10 nautical miles of the airport and continues until the aircraft is clear of runways and taxiways. Aircraft on the ground intending to depart will begin to make position reports prior to entry of the runway or taxiway and continue until departing the traffic pattern. Aircraft remaining in the pattern make position reports on each leg of the traffic pattern. Thus, knowledge of radio communication procedures will provide a remote pilot in command with the ability to utilize a valuable resource, CTAF, to help determine the position of nearby manned aircraft. As such, this rule will retain this area of knowledge on the initial aeronautical knowledge test.

xiii. Other Areas of Knowledge Suggested by The Commenters
The NPRM invited comment on whether additional areas of knowledge should be tested on the initial and recurrent knowledge tests. In response, the FAA received comments listing additional areas of knowledge that commenters would like to see on the knowledge tests. For the reasons discussed below, the FAA will add a section on maintenance and inspection to the initial and recurrent knowledge tests and the online training courses. The FAA will not add any other areas of knowledge to the knowledge tests or training courses.

The National Transportation Safety Board (NTSB) suggested that the test content should include awareness of lost-link failsafe procedures, operator development, use of maintenance and inspection steps and guides, and the characteristics and proper handling of lithium batteries. The NTSB referred to an April 2006 accident involving a U.S. Customs and Border Protection unmanned aircraft and encouraged the FAA to review its recommendations and supporting information stemming from that accident for potential lessons learned when developing guidance material and specific content for the written knowledge tests outlined in proposed part 107.

The FAA notes that topics associated with lost-link failsafe procedures will be covered by the area of knowledge testing an applicant’s understanding of the applicable small UAS regulations. With regard to maintenance and inspection, the FAA has taken action by adding maintenance and inspection knowledge test topic area requirements to the initial and recurrent knowledge tests. The addition of maintenance and inspection knowledge test topics will consist of small UAS basic maintenance and inspection knowledge that is common to all small UAS regardless of complexity. An understanding of maintenance and inspection issues will ensure that remote pilots are familiar with how to identify when a small unmanned aircraft is not safe to operate, and how to maintain a small
unmanned aircraft to mitigate the possibility of aircraft failure during flight. Although this area of knowledge will not cover every possible inspection and maintenance method, it will
provide a baseline of knowledge that will be useful to all small UAS remote pilots. The FAA disagrees with NTSB’s recommendation that the knowledge test include a topic on the characteristics and proper handling of lithium batteries. Under § 107.36, small  UAS are prohibited from carriage of hazardous materials. When installed in the aircraft for use as a power source (as opposed to carriage of spares or cargo), lithium batteries are not considered hazardous material.

NOAA suggested that the knowledge test include questions relating to protecting and operating in the context of wildlife. The Ventura Audubon Society also suggested that the FAA test an applicant’s understanding of Federal and State wildlife protection laws. The FAA is required by statute to issue an airman certificate to an individual when the Administrator finds that the individual is qualified and physically able to safely perform the duties authorized by the certificate. See 49 U.S.C. 44703(a) (stating that the Administrator “shall issue” an airman certificate to an individual who is qualified and physically capable). Therefore, the FAA cannot deny or delay the issuance of an airman certificate if an applicant has demonstrated that he or she is qualified and physically able to safely perform the duties authorized by the certificate. In this case, a remote pilot certificate with small UAS rating authorizes the holder to operate a small UAS safely in the NAS. Thus, under § 44703(a), the FAA is required to issue an airman certificate to an individual who has demonstrated an ability to safely operate a small UAS, and may not require that individual to also demonstrate an understanding of Federal and State wildlife protection laws.

The FAA emphasizes, however, that a small UAS operation may be subject to other legal requirements independently of this rule. A remote pilot in command is responsible for complying with all of his or her legal obligations and should thus have a proper understanding of wildlife protection laws in order to comply with the pertinent statutes and regulations.

Drone User Group Network suggested the following topics for the knowledge test: the concepts of lift, weight, thrust and drag, Bernoulli’s principle, weight and balance, weather, situational awareness, safety in preflight, in flight and post flight, battery theory, radio frequency theory, electrical theory, understanding flight modes, fail-safes, and aircraft types and limitations

The FAA notes that weight and balance, weather, and preflight requirements will be tested under § 107.73. The FAA agrees with the commenter that technical topics such as principles of flight, aerodynamics, and electrical theory may enhance the knowledge and technical understanding of the remote pilot. However, these topics are not critical subject areas for safe operation of small UAS. The FAA includes many of these topics in the curriculum of part 61 knowledge testing because they are critical knowledge areas for persons operating an aircraft with passengers over populated areas that may need to respond to an emergency resulting from engine failure, unexpected weather, or onboard fire. Conversely, small UAS operations take place in a contained area in a light-weight aircraft that has no people onboard, so these topics are not applicable to the same extent as they are to a manned-aircraft operation. However, the remote pilot in command should familiarize him or herself with all of the necessary information to be able to fly the unmanned aircraft without causing damage to the aircraft.

Southwest Airlines Pilots’ Association encouraged the FAA to require that operators be knowledgeable about Safety Management Systems (SMS) and the Aviation Safety Reporting System (ASRS), which could be used to collect data to support a risk managed growth of the industry and the integration into the NAS. The FAA disagrees that SMS and ASRS systems should be covered on the knowledge tests. Participation in a formal SMS program is currently required only for part 121 operations, which are the largest and most complex manned-aircraft operations regulated by the FAA. Requiring small UAS to participate in this program would not be justified considering the fact that the FAA does not require non-part-121 manned-aircraft operations to have an SMS. Similarly, the FAA will not require testing on ASRS knowledge because ASRS is not currently required knowledge for part 61 pilot certificate holders.

k. Administration of the Knowledge Tests and Training Courses
This section discusses how the initial and recurrent knowledge tests and online training courses will be administered under this rule. Specifically, this section addresses: (1) the location at which a knowledge test can be taken; (2) the prohibition on cheating and engaging in unauthorized conduct during a knowledge test; (3) the identification of the test taker; and (4) retesting after failing a knowledge test.

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Section 107.73 Initial and recurrent knowledge tests. (2018)

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Section 107.73 Initial and recurrent knowledge tests.

(a) An initial aeronautical knowledge test covers the following areas of knowledge:

(1) Applicable regulations relating to small unmanned aircraft system rating privileges, limitations, and flight operation;

(2) Airspace classification, operating requirements, and flight restrictions affecting small unmanned aircraft operation;

(3) Aviation weather sources and effects of weather on small unmanned aircraft performance;

(4) Small unmanned aircraft loading;

(5) Emergency procedures;

(6) Crew resource management;

(7) Radio communication procedures;

(8) Determining the performance of small unmanned aircraft;

(9) Physiological effects of drugs and alcohol;

(10) Aeronautical decision-making and judgment;

(11) Airport operations; and

(12) Maintenance and preflight inspection procedures.

(b) A recurrent aeronautical knowledge test covers the following areas of knowledge:

(1) Applicable regulations relating to small unmanned aircraft system rating privileges, limitations, and flight operation;

(2) Airspace classification and operating requirements and flight restrictions affecting small unmanned aircraft operation;

(3) Emergency procedures;

(4) Crew resource management;

(5) Aeronautical decision-making and judgment;

(6) Airport operations; and

(7) Maintenance and preflight inspection procedures.

My Commentary on Section 107.73 Initial and recurrent knowledge tests.

Aeronautical Knowledge Tests (Initial and Recurrent). It is important to have and retain the knowledge necessary to operate a small UA in the NAS. This aeronautical knowledge can be obtained through self-study, taking an online training course, taking an in-person training course, or any combination thereof. The FAA has published the Small Unmanned Aircraft Systems Airman Certification Standard (https://www.faa.gov/training_testing/testing/acs/) that provides the necessary reference material. Note: The below information regarding initial and recurrent knowledge tests apply to persons who do not hold a current part 61 airman certificate. 6.6.1 Initial Test. As described in paragraph 6.4, a person applying for remote pilot certificate with an sUAS rating must pass an initial aeronautical knowledge test given by an FAA-approved KTC. The initial knowledge test will cover the aeronautical knowledge areas listed below: 1. Applicable regulations relating to sUAS rating privileges, limitations, and flight operation; 2. Airspace classification and operating requirements, and flight restrictions affecting small UA operation; 3. Aviation weather sources and effects of weather on small UA performance; 4. Small UA loading and performance; 5. Emergency procedures; 6. Crew Resource Management (CRM); 7. Radio communication procedures; 8. Determining the performance of small UA; 9. Physiological effects of drugs and alcohol; 10. Aeronautical decision-making (ADM) and judgment; 11. Airport operations; and 12. Maintenance and preflight inspection procedures. 6.6.1.1 A part 61 certificate holder who has completed a flight review within the previous 24 calendar-months may complete an initial online training course instead of taking the knowledge test (see paragraph 6.7). 6/21/16 AC 107-2 6-5 6.6.1.2 Additional information on some of the knowledge areas listed above can be found in Appendix B. 6.6.2 Recurrent Test. After a person receives a remote pilot certificate with an sUAS rating, that person must retain and periodically update the required aeronautical knowledge to continue to operate a small UA in the NAS. To continue exercising the privileges of a remote pilot certificate, the certificate holder must pass a recurrent aeronautical knowledge test within 24 calendar-months of passing either an initial or recurrent aeronautical knowledge test. A part 61 pilot certificate holder who has completed a flight review within the previous 24 calendar-months may complete a recurrent online training course instead of taking the knowledge test.

Advisory Circular 107-2 on Section 107.73 Initial and recurrent knowledge tests.

Aeronautical Knowledge Tests (Initial and Recurrent). It is important to have and retain the knowledge necessary to operate a small UA in the NAS. This aeronautical knowledge can be obtained through self-study, taking an online training course, taking an in-person training course, or any combination thereof. The FAA has published the Small Unmanned Aircraft Systems Airman Certification Standard (https://www.faa.gov/training_testing/testing/acs/) that provides the necessary reference material.

Note: The below information regarding initial and recurrent knowledge tests apply to persons who do not hold a current part 61 airman certificate.

6.6.1 Initial Test. As described in paragraph 6.4, a person applying for remote pilot certificate with an sUAS rating must pass an initial aeronautical knowledge test given by an FAA-approved KTC. The initial knowledge test will cover the aeronautical knowledge areas listed below:
1. Applicable regulations relating to sUAS rating privileges, limitations, and flight operation;
2. Airspace classification and operating requirements, and flight restrictions affecting small UA operation;
3. Aviation weather sources and effects of weather on small UA performance;
4. Small UA loading and performance;
5. Emergency procedures;
6. Crew Resource Management (CRM);
7. Radio communication procedures;
8. Determining the performance of small UA;
9. Physiological effects of drugs and alcohol;
10. Aeronautical decision-making (ADM) and judgment;
11. Airport operations; and
12. Maintenance and preflight inspection procedures.

6.6.1.1 A part 61 certificate holder who has completed a flight review within the previous 24 calendar-months may complete an initial online training course instead of taking the knowledge test (see paragraph 6.7).

6.6.1.2 Additional information on some of the knowledge areas listed above can be found in Appendix B.

6.6.2 Recurrent Test. After a person receives a remote pilot certificate with an sUAS rating, that person must retain and periodically update the required aeronautical knowledge to continue to operate a small UA in the NAS. To continue exercising the privileges of a remote pilot certificate, the certificate holder must pass a recurrent aeronautical knowledge test within 24 calendar-months of passing either an initial or recurrent aeronautical knowledge test. A part 61 pilot certificate holder who has completed a flight review within the previous 24 calendar-months may complete a recurrent online training course instead of taking the knowledge test.

FAA’s Discussion on Section 107.73 Initial and recurrent knowledge tests from the Final Small Unmanned Aircraft Rule

The FAA notes that weight and balance, weather, and preflight requirements will be tested under § 107.73. The FAA agrees with the commenter that technical topics such as principles of flight, aerodynamics, and electrical theory may enhance the knowledge and technical understanding of the remote pilot. However, these topics are not critical subject areas for safe operation of small UAS. The FAA includes many of these topics in the curriculum of part 61 knowledge testing because they are critical knowledge areas for persons operating an aircraft with passengers over populated areas that may need to respond to an emergency resulting from engine failure, unexpected weather, or onboard fire. Conversely, small UAS operations take place in a contained area in a light-weight aircraft that has no people onboard, so these topics are not applicable to the same extent as they are to a manned-aircraft operation. However, the remote pilot in command should familiarize him or herself with all of the necessary information to be able to fly the unmanned aircraft without causing damage to the aircraft.

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The NPRM proposed requiring applicants for a remote pilot airman certificate with a small UAS rating to pass an initial aeronautical knowledge test to demonstrate that they have sufficient aeronautical knowledge to safely operate a small UAS. The FAA adopts the provisions as proposed with three changes. First, as discussed in III.F.2.i below, the FAA exempts part 61 pilot certificate holders from the requirement to complete an initial knowledge test as long as they satisfy the flight review requirements of their part 61 pilot certificate and complete an online training course within the preceding 24 months. Second, as discussed in III.F.2.h below, the FAA will require that pilots with military experience operating unmanned aircraft pass an initial knowledge test in order to obtain a remote pilot certificate with small UAS rating, and pass a recurrent knowledge test every 24 months subsequent in order to continue to exercise the privileges of that certificate.

Many commenters, including National Association of State Aviation Officials, NAAA, ALPA, and NAMIC, supported the FAA’s proposal to require an initial aeronautical knowledge test in order to operate a small UAS. Conversely, several commenters opposed the initial aeronautical knowledge test. Commenters argued that initial testing is “overkill” and the FAA should treat small UAS pilots like part 103 ultralight vehicle pilots and not require airman certification or testing. The commenters further argued that all testing is unnecessary and inappropriate.

The FAA disagrees with the commenters who asked that the knowledge test be abolished. Title 49 U.S.C. 44703 requires the FAA to ensure that an airman certificate applicant is qualified and able to perform the duties related to the position to be authorized by the certificate.

Here, in order to meet its statutory obligation to determine that an applicant for a remote pilot certificate possesses the knowledge necessary to safely operate in the NAS, the FAA is requiring that those persons pass an initial aeronautical knowledge test. Knowledge testing is the most flexible and efficient means for ensuring that a remote pilot possesses the requisite knowledge to operate in the NAS because it allows the applicant to acquire the pertinent knowledge in whatever manner works best for him or her. The applicant can then take and pass the aeronautical knowledge test to verify that he or she has indeed acquired the pertinent areas of knowledge.

NAFI recommended that an applicant should be required to obtain an instructor endorsement to take the initial aeronautical knowledge test. SkyView Strategies suggested that to protect the public from a poorly prepared UAS operator who receives a passing grade but gets important questions wrong, the UAS operator should be required to present to a flight training instructor his or her written test results, noting areas where knowledge is lacking.

The FAA disagrees with the recommendation that an applicant should be required to obtain an instructor endorsement to take the initial aeronautical knowledge test. While an instructor endorsement is generally required for part 61 pilot certificates, the significantly reduced risk associated with small UAS operations conducted under part 107 would make this framework unduly burdensome in this case. Instead, a stand-alone knowledge test is sufficient to verify the qualification of the remote pilot certificate applicant.

Because the aeronautical knowledge test will determine whether an applicant possesses the knowledge needed to safely operate a small UAS, a separate flight instructor endorsement should not be required to take the knowledge test. The FAA also notes that the costs associated with failing and having to retake the knowledge test will provide an incentive to applicants to pick a method of study that maximizes the chance of them passing the aeronautical knowledge test on the first try.

The FAA also does not agree that a certificate applicant should be required to present to a flight instructor his or her knowledge test results for remedial training. The FAA maintains that if a candidate is “poorly prepared,” then that person is unlikely to pass the knowledge test.

The University of Arkansas Division of Agriculture suggested that a more appropriate “aeronautical knowledge exam” needs to be developed with input from UAS users. It further suggested that the FAA should periodically revisit the scope of the aeronautical knowledge test as operational experience data increases. FAA knowledge test banks are continuously updated to address changes to the industry, safety, and special emphasis areas. While the FAA responds to industry and user community feedback, the small UAS knowledge test bank is developed internally within the agency to protect the integrity of test.

g. General Requirement for Recurrent Aeronautical Knowledge Test
The FAA proposed that a certificated remote pilot must also pass a recurrent aeronautical knowledge test every 24 months. Like the flight review requirement specified in § 61.56, the recurrent knowledge test provides the opportunity for a remote pilot’s aeronautical knowledge to be reevaluated on a periodic basis. The FAA adopts this provision as proposed, with one change. As discussed in III.F.2.i, the FAA exempts part 61 pilot certificate holders from the requirement to complete recurrent knowledge tests as long as they satisfy the flight review requirements of § 61.56 and complete an online training course every 24 months .

ALPA, AOPA, AUVSI and several other commenters supported the requirement for a recurrent knowledge test. Conversely, Colorado Cattlemen’s Association and a few individual commenters argued that a recurrent knowledge test is unnecessary. The Colorado Cattlemen’s Association explained that small UAS operations present a substantially reduced risk as compared to manned-aircraft operations. Therefore, the commenter argued, it is appropriate to impose different, and in some instances lesser, operational requirements.

The FAA disagrees with the notion that no periodic reevaluation of knowledge is necessary. Knowledge of rules, regulations, and operating principles erodes over time, particularly if the remote pilot is not required to recall such information on a frequent basis. This is a fundamental principle of airman certification, and it applies to all FAA- certificated airmen. For part 61 pilot certificate holders, the flight review, conducted under § 61.56, specifically requires “[a] review of the current general operating and flight rules of part 91” in addition to maneuvers necessary to safely exercise the privileges of the certificate. Likewise, the FAA considers a recurrent knowledge test to be an effective means of evaluating a remote pilot’s retention of knowledge necessary to safely operate small unmanned aircraft in the NAS. Because of the reduced risk posed by small UAS, the FAA is not requiring remote pilots to demonstrate a minimum level of flight proficiency to a specific standard or recency of flight experience in order to exercise the privileges of their airman certificate.

Drone Labs suggested extending the time period between recurrent tests to 5 years, and/or making the test available online to ease recertification. Kansas Farm Bureau recommended a 6-year interval between recurrent tests, similar to the interval for renewal of a driver’s license.

The FAA does not agree that the recurrent testing interval should be longer than two years. Unlike the privileges afforded by a driver’s license, which are exercised on a frequent basis by most drivers, many holders of remote pilot certificates may only exercise their privileges occasionally or may not regularly conduct operations that apply all of the concepts tested on the aeronautical knowledge test. For example, a remote pilot in command may spend years never operating outside of Class G airspace, and then may move to a different location that requires him or her to begin conducting small UAS operations in Class D airspace. Based on experience with manned pilots, those persons who exercise the privileges of their certificate on an infrequent basis are likely to retain the knowledge for a shorter period of time than those who exercise the privileges of their certificate on a regular basis.

Further, as unmanned aircraft operations increase in the NAS, the FAA anticipates the possibility of further changes to rules and regulations. By requiring evaluation on a two-year cycle, the FAA is able to ensure that remote pilots are aware of the most recent changes to regulations affecting their operations.

The FAA acknowledges, however, the burden associated with in-person testing every two years. As such, the FAA intends to look at (in the Operations of Small Unmanned Aircraft Over People rule) alternative methods to further reduce this burden without sacrificing the safety benefits afforded by a two-year recurrent knowledge check.

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